How To Ensure Legal Protection for a Parent With Dementia

Getting legal help as soon as possible is essential

By Canaan Suitt, J.D. | Last updated on February 6, 2023

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According to the Alzheimer’s Association, 55 million individuals worldwide have Alzheimer’s disease or other forms of dementia. Signs of dementia include disruptive memory loss, an inability to plan ahead or complete familiar tasks, and confusion about time and place. 

Legal planning is essential to taking care of a loved one who has been diagnosed with Alzheimer’s disease or other dementia. Legal planning addresses issues such as: 

  • Who gets to make medical and financial decisions on the person’s behalf if they cannot make their own decisions? 
  • Who gets to decide if the person should be placed in an assisted living or nursing home community? 
  • Who gets to appoint the individual with decision-making authority? 
  • Will the person have enough money to pay for long-term caregiving? What will Medicare or Medicaid be able to cover? 

This article will give an overview of these issues. If you have a loved one with early signs of dementia, it’s essential to seek medical help as well as legal help in creating an advanced care plan. An experienced elder law attorney will be able to develop a plan for your loved one that ensures they are taken care of even as their dementia advances. 

What Is a Power of Attorney? 

An estate plan includes several important legal documents.  

Some estate planning documents address how the person’s assets will be distributed when they die. Documents of this type include a living trust and a last will and testament (or “will”). A person’s will expresses their final wishes and names the beneficiaries who will inherit some portion of their estate. 

Wills and trusts focus on what happens to a person’s property after death. Other estate planning documents address end-of-life matters when the person is still alive: 

  • Durable power of attorney (POA). A POA is a legal document through which you give decision-making authority to another person if you become incapacitated and unable to make your own decisions. There are a couple of different kinds of POAs:
    • Health care POAs are authorized to make health care decisions on your behalf  
    • Financial POAs are authorized to make financial decisions on your behalf 
  • Advance directive. Also called a health care directive or living will, an advance directive specifies the type of medical care that you want to receive from your health care provider at the end of your life. For example, do you want to receive life support or life-saving surgery? What kind of life support do you want to receive? 

The legal requirements for valid estate planning documents vary by state laws. It’s important to meet with an elder law or estate planning attorney if you or a loved one needs an estate plan, including a power of attorney and advance directives.  

Ensuring that the documents are properly drafted at the beginning can save a great deal of time and money in the future. It’s also important for the person’s caregiver or family members to have copies of these legal documents so that they know what to do when the time comes.  

Can Someone With Dementia Set up a Power of Attorney? 

To appoint a power of attorney, the basic rule is that an individual must be an adult (in most states, this is 18 years or older) and have the legal capacity to sign a document.  

But what is legal capacity? 

The answer to this question “is a gray area,” says Minnesota elder law attorney Laura J. Zdychnec.  

“There’s a common misconception that a person diagnosed with Alzheimer’s or another form of dementia all of a sudden can’t do anything, legally speaking. That’s completely wrong,” says Zdychnec. 

“The legal capacity to sign a legal document is completely different from a medical diagnosis.” 

For example, “In Minnesota and many other states, the capacity to appoint a power of attorney is the same as the capacity to sign a contract. Basically, the person just has to have an understanding of how [the legal document] will work and what the repercussions are of having the document,” she adds. 

What attorneys do, she says, is “evaluate a person’s capacity to sign a power of attorney based partly on what’s right in front of us—in other words, how well the person seems to comprehend the document. But the evaluation of capacity also depends to some extent on circumstances.”  

Zdychnec has to ask herself: What are the risk factors? “For example, I’m much more comfortable with a husband signing a POA authorizing his wife of 50 years and his only adult child than I am with that same husband signing off on a POA to a new wife whom he met and married three months ago and who has children of her own.” 

In this latter example, “the water is muddy,” says Zdychnec, and may lead to bitter disputes with other family members. 

In any event, “it’s not that a person has capacity one day and doesn’t the next, at least when talking about dementia and its progression,” says Zdychnec. Someone in the early stages of dementia may still have the mental capacity to sign a power of attorney document. 

“Sometimes, we’ll arrange with the family to meet with the person on a good day for them,” she says. As long as “capacity is present at the time when they signed,” the document will be valid. Capacity “doesn’t necessarily require the person’s long-term ability to recall, in the future, the fact that they signed the document.” 

How To Get an Attorney for a Patient With Dementia?  

First, you want to check if your parent or loved one with dementia has already appointed a power of attorney. If so, that person will have the legal authority to make various decisions on behalf of the person. 

Suppose no power of attorney or other representative is already appointed. In that case, your parent may still have the capacity to appoint someone, even though they have a diagnosis of dementia. It’s essential to speak with an attorney as soon as possible about this. 

If there is no power of attorney and your parent or loved one has become incapacitated, you will need to petition the local court for a guardianship or conservatorship order.  

A court-appointed guardian or conservator (terminology differs depending on the state) is similar to a power of attorney in being legally authorized to make decisions on behalf of the incapacitated person.  

The critical difference is that a POA is appointed by the person, while a guardian or conservator is appointed by the court when the person can’t select a POA. Often, a family member or someone close to the incapacitated person will be appointed guardian. 

Like a POA, a guardian’s decision-making authority ends when the person passes away. 

Questions for an Elder Law Attorney 

Depending on the nature of the consultation, some elder law attorneys provide free initial meetings. In other cases, a consultation fee may be put toward future legal services.  

Consultations allow you to speak with an expert and get legal advice. To get the most out of a consultation, ask informed questions such as: 

  • What are your attorney’s fees and billing options? 
  • What is your experience with elder care planning? 
  • How do we ensure that my parent receives the long-term care they need? 
  • What are legal capacity and incapacity in my state?  
  • What information is required in a power of attorney document? 

Once you have met with a lawyer and gotten your questions answered, you can begin an attorney-client relationship. 

Look for an elder law attorney in the Super Lawyers directory for legal help with elder abuse issues. 

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