Estate Planning

How To Get Power of Attorney For Parent With Dementia?

Ty McDuffey


When your parent is diagnosed with dementia, your whole family is affected, and usually, a family member must step in to manage their affairs. 

In addition to dealing with the emotions accompanying the diagnosis, your family must meet with your parent to prepare for their present and future needs.

Because of confidentiality regulations in the banking and healthcare sectors, the person who wants to help your parent will need legal authorization. This power is inherent in spouses, but anybody else, even close family members such as an adult child, will require explicit approval.

This task might seem daunting, especially if you are still trying to accept the diagnosis. However, it is critical that your family takes advantage of the disease's early stages to fully understand your parent's plans for going forward.

In this article, we will discuss how to get Power of Attorney for a parent with dementia and provide suggestions to make the process easier.

Key Takeaways:

  • A Durable Power of Attorney is often necessary when a parent suffers from dementia. It empowers a family member or friend to make medical and financial decisions on behalf of your parent, ensuring they receive the care and asset management they need.

  • Before signing a POA, your parent's ability to make informed choices may be evaluated, and a note from a physician may be required to certify that your parent comprehends what they're signing.

  • If a power of attorney can't be established because your parent lacks the ability to sign it, a conservatorship may be considered, but this may be time-consuming and should be avoided if possible.

Establishing a Durable Power of Attorney for a Dementia Patient

When your parent suffers from dementia, a Durable Power of Attorney is often required. 

A durable POA empowers a trusted family member or friend to make medical and financial decisions on behalf of your parent, ensuring that they get the care they need and that their assets are appropriately managed.

Why is Power of Attorney Important for Parents Suffering from Dementia?

As an elderly parent develops dementia, they may become forgetful or disoriented, making decisions about health or money harder. 

A Durable Power of Attorney empowers someone else to make decisions on behalf of your parent when they are no longer capable.

How Can You Tell if Your Parent is Unable to Make these Decisions?

The ability to make critical judgments is referred to as mental capacity. Your parent may lack mental capacity if they are unable to comprehend or remember the details required to make a choice.

Before signing a POA, your parent's capacity to make informed choices may be evaluated. 

An assessment exam, such as the Hopkins Competence Assessment Test, may be used to do this. The test findings may be used with a psychiatrist's evaluation of your parent.

Is it Difficult to Create a Power of Attorney for Someone Suffering from Dementia?

Establishing a power of attorney for someone with dementia or Alzheimer's is not always difficult, but there is one important factor to remember. 

To form a legitimate POA, the grantor of the power of attorney — in this example, your parent suffering from dementia — must be able to comprehend what they are signing. This is done to protect the grantor against elder abuse, corruption, and other crimes. 

For the power of attorney to be legal, you may need a note from a physician certifying that your parent can still comprehend what is being signed.

Why Would My Parent Need a Power of Attorney if They Can Still Comprehend What they are Signing? 

It makes sense to establish a power of attorney before your parent's capacity to sign and make a legal one fades. In these cases, a power of attorney is often made "springing," meaning it only takes effect when the grantor can no longer show the capacity to make these choices. 

In this situation, the person permitted to make choices for your parent can only do so if your parent's mental dexterities are called into doubt.

What if No Power of Attorney is Established?

If your parent is unable to make their own choices, they cannot sign a power of attorney. Since this legal document gives another person critical decision-making power, your parent must fully comprehend what they are doing while signing the POA.

A conservatorship may be considered if a power of attorney cannot be given because your parent cannot legally sign the document.

Conservators may serve as a power of attorney agent, making medical and financial decisions on your parent's behalf. However, becoming a conservator takes time and often entails an expensive legal process. 

Nevertheless, if you want to assist your parent who is unable to make choices for themselves, this judicial process may be worth the effort. But keep in mind that a conservatorship may be time-consuming and should be avoided if possible it is a much more intrusive choice than a power of attorney.

Related: How To Get Power of Attorney For A Deceased Person?

Delegation of Power of Attorney – Early Stage Dementia

Before any medical crisis, including a dementia diagnosis, older people should identify their power of attorney and get the paperwork made out. If your parent has not yet been diagnosed with dementia, you can work together to establish a power of attorney.

Meet with an attorney beforehand. It is better to consult with an attorney well-versed in elder law issues. 

In general, a person with dementia may sign a power of attorney designation if they comprehend what the document is, what it accomplishes, and what they are signing. Most elders with early-stage dementia may make this distinction.

Delegation of Power of Attorney – Mid- to Late-Stage Dementia

Things may get more problematic if there is no power of attorney designation and your parent is farther along in the disease's progression. 

If your parent cannot comprehend the power of attorney form and procedure, the family will need help from the local court.

A judge may hear the case and appoint someone in the family (or a court designate) as a conservator. 

A conservatorship empowers the court-appointed designee to make financial choices for your parent. A guardianship empowers the court-appointed designee to make healthcare choices for your parent. This is time-consuming, but it is required to advocate for your parent and their wants.

Obtaining Power of Attorney from a Dementia Parent: 4 Suggestions to Make the Process Easier

Here are some actions you can take right now to acquire a Power of Attorney, including your parent and other family members.

First, understand what is at stake. Being granted Power of Attorney comes with a great deal of responsibility. Whoever is awarded POA will have complete control over your parents' money, livelihood, and health. Take the time to learn about the responsibilities that come with a POA.

Then, organize a family gathering. Decide who is most suited to take on the POA obligations. In their enthusiasm to help, some family members may offer to assist right away, but be sure that they are aware of the obligations that come with the POA.

Have a conversation with your parent afterward. 

Bring up the topic casually, explaining what a Durable Power of Attorney is and why they should get one.

Discuss the benefits of having a family member "on their side" to ensure your parent's best interests are prioritized in all situations.

Expect some pushback. Nobody wants to relinquish control of their own life or business. Your mother or father may be reluctant to discuss the specifics of their financial or health conditions with you. Please be patient with them.

Lastly, choose a lawyer who specializes in elder law. Having completed the preceding steps ahead of time, a lawyer will help the rest go smoothly.

Of course, as mentioned, if your parent has severe dementia, you will need to arrange for a doctor's evaluation to certify their level of cognitive. The doctor may also be called to testify in court. Only a court order can give Power of Attorney in these situations.

What to Do If Your Parent Refuses to Accept Assistance

A power of attorney is not an option if your parent with dementia rejects your help. Even if you manage to talk them into accepting your help, this will be deemed undue influence, and a court may revoke a power of attorney. You must instead petition the court for guardianship.

What Exactly is Guardianship?

When a mentally incompetent parent needs assistance with their affairs, a court might appoint a guardian to help them. 

A guardian oversees your parent's personal, medical, and financial affairs. Frequent guardianship tasks include managing assets, collecting money, paying bills, choosing living arrangements, creating a care plan, working with physicians, and making key medical choices.

How to Get an Appointment as a Guardian

To be designated as your parent's guardian, you must submit a petition to the court in the county where they live. The court will set a hearing date and tell you to notify your parent, family members, and relevant agencies. 

During the hearing, you must demonstrate that your parent is mentally incompetent and that you are eligible to act as their guardian.

The court will normally demand a certificate from a physician or psychiatrist to assess your parent's mental competence. These specialists will need to certify that your parent is incompetent and establish the level of their disability. 

An entirely incapable parent will need a guardian with full power to handle all of their affairs, but a parent who is financially incompetent but conscious enough to manage their own healthcare may simply need financial support.

After the court has determined the level of your parent's incapacity, you must convince the judge that you are the ideal person to serve as their guardian. The court normally likes to see a care plan in place and a track record of success in helping your parent. 

In addition to evaluating your merits, the judge will check for any conflicts of interest and may consider red flags such as a recent bankruptcy, court judgment, criminal record, or a history of squandering your parent's assets.

What Is the Different Between a Conservator and a Guardian?

Guardians designated by the court have the ability to help wards with their personal, financial, and medical needs. 

A conservator's role is confined to dealing with their financial concerns, albeit they have an extra fiduciary obligation to responsibly handle the ward's assets. 

Conservators are frequently appointed when a parent has a demonstrated history of mismanaging their money to the point of financial ruin or falling prey to repeated acts of fraud. However, these are not necessarily grounds for conservatorship.

Advance Decisions for Dementia Patients

An Advance Decision (also known as a Living Will) is a legal document allowing your parent to specify what life-sustaining/life-saving medical care they do not want in the future.

Any parent making an Advance Decision must write it down, sign it, and have it attested. It is legally enforceable if your parent has the mental ability to draft and sign the Advance Decision while fully aware of its ramifications.

The paper must explicitly state which treatments will be declined and under what conditions. For example, if your parent wishes to decline treatment that might end in death, they must declare this unambiguously. If the Advance Decision is legally binding, it supersedes choices made in the best interests of your parent by others, such as physicians or other family members.

Order to Deny CPR for Dementia Patients

Everyone has the freedom to reject CPR using a DNACPR if they do not want it. This is an acronym that stands for Do Not Attempt Cardiopulmonary Resuscitation and may be placed on an Advance Decision form.

DNACPR indicates that if your parent's heart or breathing stops, healthcare providers will not perform CPR on them.

Having a written document indicating whether or not your parent with dementia wants to undergo CPR in such a case can make the choice simpler to make.

Is it Possible to Challenge a POA?

If you are worried about your parent and believe the agent is not operating in their best interests, you should consult with an elder law attorney. If the present agent is abusing their power of attorney, a lawyer may be able to revoke it.

Moral Considerations

You have not only legal duties as the power of attorney but also ethical ones. Most importantly, you should recognize that being a trustee entails a great deal of responsibility. It requires you to follow your parent's explicit conditions.

Be sure that you are not substituting your preferences for those of your parents. Make decisions that are consistent with your parents' directions. You are required by law to keep accurate records of spending and other financial activities. 

Get informed consent for medical interventions. Informed consent is the process of telling your parent about a medical alternative and obtaining their permission.

How Can Trustworthy Help?

Having a power of attorney document in place is crucial for anyone who wants to make sure their parent's wishes are carried out in the event of incapacitation or other unforeseen circumstances. However, simply creating a POA is not enough; it must be stored in a secure and easily accessible location.

This is where Trustworthy comes in. As an online storage system for important legal documents, including POAs, Trustworthy offers a secure and convenient solution for families to store their vital documents. With features such as 256-bit encryption, automatic backups, and multi-factor authentication, you can trust that your parent's documents are safe and protected.

So if you're looking for a reliable way to store your parent's POA and other important legal documents, sign up for Trustworthy today. 

Don't leave your parent's future to chance – take control of their legal affairs and ensure your parent's wishes are honored with the help of Trustworthy.