Can Mom Give Me A Power of Attorney?
Diagnosis of Dementia May Not Preclude Signing POA and Health Care Directive
“I need to get a power of attorney for my mother. She’s in an Alzheimer’s unit and she can’t take care of her finances or make medical decisions any more.”
That is the most common first call we get. A caller has been told by a friend or a case manager the nursing home that a power of attorney is required, and that it will take a lawyer to write one up for them.
Can our caller “get” a power of attorney for her mother? Not exactly. Only her mother can “give” a power of attorney and her mother will need to make the decision herself – and she may (for whatever reason) refuse.
There is a lot of understandable confusion about powers of attorney, guardianship and conservatorship. It is important to understand the difference between them. A competent adult may sign a power of attorney giving another person the authority to make financial decisions. But once an individual has lost mental capacity to understand the nature of the power of attorney itself, it is too late to sign the document. At that point it will be necessary to have a court appoint a conservator to manage her finances and a guardian to manage her health care with authority to make a placement in a nursing home, a memory care unit or administer medications.
A “diagnosis” of Alzheimer’s may be confusing. It is often described as a “diagnosis of exclusion” because it is impossible to definitively diagnose during life. Instead, the physician must rule out the other possible causes of dementia before settling on Alzheimer’s. But the precise diagnosis is less important for our legal purposes – a diagnosis of dementia of any type has the same legal effect. It may raise concerns about capacity, but it primarily serves as a cue to the lawyer to ask more searching questions, testing for consistency and true understanding.
So, just because a diagnosis of dementia has been made, it does not necessarily follow that the patient can no longer make legal decisions. In our experience, in fact, most patients with recent diagnoses of dementia may still be able to discuss a power of attorney and health care directive (and other estate planning options, like wills and trusts) – perhaps for years. The legal issue is whether the person understands the effect of the documents he or she is signing. The level of capacity required to sign a power of attorney or health care directive is not terribly high, unless there are complicating circumstances in an individual case.
We can usually help the caller who asks for a power of attorney – by showing them how to cope with their legal issues. But it may not be as simple as having the family member sign a power of attorney.
Article Provided by:
Tom Pixton, The Pixton Law Firm
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