At Belmont Village, we understand how difficult it is to adapt when a loved one receives a dementia diagnosis. Everything can change, including relationship dynamics, responsibilities, communication styles, and day-to-day tasks. During this time, while adapting to new changes, it’s still important to look to the future.
A core part of long-term care planning should include discussions about power of attorney, including when to file these documents and how to change power of attorney for someone with dementia, as well as the legal considerations and compassionate communication strategies needed to navigate this process.
What is Power of Attorney?
A power of attorney, also known as a POA, is an important legal document. A power of attorney document bestows someone (agent/attorney-in-fact) the legal authority to manage all legal and financial planning and affairs on behalf of someone else (principal). This broad authority can include handling everyday finances, paying bills, dealing with bank accounts, and submitting insurance claims.
Different Types of Power of Attorney
There is more than one type of power of attorney. Which one is best depends on your family’s needs and wants, especially when dementia is a factor.
General Power of Attorney
A general power of attorney grants the legal authority to handle financial and legal matters, such as handling daily finances, paying bills, and submitting insurance claims. This type is ideal when comprehensive management is needed, but its authority often ends if the principal becomes incapacitated.
Durable Power of Attorney
For long-term care planning, particularly with a dementia diagnosis, a durable power of attorney is essential. It explicitly remains valid even if the principal becomes physically or mentally incapacitated. This setup ensures that legal and financial decisions can continue uninterrupted.
Healthcare Power of Attorney
A durable POA for healthcare (health care surrogate) lets the attorney-in-fact make healthcare-related decisions. These healthcare decisions can include choosing care facilities and treatment options.
Limited Power of Attorney
A limited power of attorney is a type of POA document that, as the name suggests, limits the agent’s authority to specific tasks, often for a temporary period.
Financial Power of Attorney
A financial power of attorney is a common type of limited POA. It enables an agent to manage specific financial matters like bank accounts and investments. This POA is suitable when a principal wishes to grant authority for defined actions without encompassing all aspects of their affairs.
Springing Power of Attorney
A springing power of attorney is a type of POA that is only valid when a certain event happens, like the principal being certified as incapacitated by a physician. Since it allows the principal to maintain control until absolutely necessary, it’s important to be cautious with this POA, as proving incapacitation might delay urgent actions.
POA or Living Will: Which Is Best?
A durable POA is a type of POA that remains valid no matter what—even if the principal becomes physically or mentally incapacitated. For families where one member lives with dementia, an adult child can become the agent for their aging parent with Alzheimer’s disease (the principal). The adult child will be able to make decisions for their parent even when the dementia progresses.
A living will is a type of advance directive that exclusively communicates a person’s preferences for end-of-life medical treatment. It specifies wishes regarding life-sustaining treatments like artificial life support, feeding tubes, or do-not-resuscitate (DNR) orders. For families where one member lives with dementia, a living will would let the older adult with Alzheimer’s disease specify that they do not want to be on life support, even if the adult child is in favor of life support. The medical team will respect the older adult’s wishes thanks to the living will.
In short, while a POA grants an agent broad authority to make decisions across various domains, a living will states the individual’s specific healthcare wishes when they are unable to communicate. The agent typically cannot override a living will, as it directly reflects the principal’s explicit wishes.
Both a POA and a living will are important long-term care and end-of-life planning documents that families should discuss when a member receives a dementia diagnosis.
When is it Time for Power of Attorney?
The optimal time to establish POA for someone with dementia is as early as possible. Ideally, families should do so upon diagnosis (or even before), while the person with dementia still possesses the legal capacity to understand and make such decisions. A durable POA is particularly crucial as it remains valid even if the individual later faces impairment of their decision-making abilities.
Waiting until mid- to late-stage dementia, when mental capacity is lost, means the person can no longer legally create or change a POA. At that point, families might have to pursue a more complex and expensive court process to appoint a guardian or conservator.
How Can I Change Power of Attorney for My Loved One with Dementia?
Changing POA for someone with dementia primarily depends on their mental capacity. If the principal still has the legal ability to understand their actions and the implications of the document, the principal can modify their POA. It’s therefore crucial to address POA changes or establishment during the early stages of dementia when capacity is still present.
Changing the Attorney-in-Fact for Power of Attorney for Someone with Dementia
To change the attorney-in-fact when the principal retains capacity, they must formally revoke the existing POA and create a new document explicitly naming the new agent. This new POA should clearly state that it supersedes all prior versions. It’s essential to destroy all copies of the old POA and formally inform all relevant entities and parties (banks, healthcare providers, etc.) of the change.
An elder law attorney can ensure the new documents are drafted correctly and comply with state-specific laws, which can vary. Witnesses or a notary may be required, and their presence can help confirm the principal was of sound mind at the time of signing.
If the person living with dementia no longer has the mental capacity to make such decisions, they cannot legally change their POA or appoint a new agent. In these advanced stages, family members may need to seek a guardianship or conservatorship. This process is more complex, lengthy, and potentially expensive. Families often only initiate it if there’s no existing POA or if the current agent is suspected of misusing their authority.
POA FAQs
How do I transfer power of attorney to someone else?
Transferring power of attorney for a loved one with dementia depends on their mental capacity. If they still legally understand the document’s implications, they can revoke their current POA and sign a new one naming a different agent or a successor. It’s wise to ensure the new document explicitly supersedes previous ones.
If your loved one lacks the competency/capacity to make such decisions, they cannot initiate a change themselves. In this case, if a successor agent was previously named in a durable POA, that individual would assume the role. Otherwise, family members might need to petition the court for guardianship or conservatorship.
Who is responsible for a parent with dementia?
When a parent develops dementia, the responsibility for their care often falls to family members, who typically serve as unpaid caregivers. This role is immensely challenging, involving extensive physical, emotional, and financial support.
Legally, if a parent loses the mental capacity to make their own decisions, a designated POA agent becomes responsible for their healthcare and financial affairs. If no POA is in place, a court may place the older person in question in a conservatorship or guardianship.
It’s also possible to entrust the care of an aging loved one with advanced needs to a trusted senior living community. Belmont Village communities, for example, offer comprehensive memory care and assisted living, providing support and specialized programs grounded in research for seniors with cognitive decline, which can help alleviate the family’s caregiving burden.
Can someone with dementia make legal decisions?
If someone with dementia has the mental capacity to make sound legal decisions and understand legal documents, they can make legal decisions.
Do you have to file the POA with the country clerk?
Filing requirements for POA vary significantly by state. While some states may require notarization to validate the document, others may not. In other words: filing a POA with a county clerk is not a universal requirement.
To ensure your POA is legally sound and accurately reflects your loved one’s wishes, consult an elder law attorney familiar with your state’s specific laws and procedures. They can guide you through proper execution, including any specific local filing steps and state laws, ensuring the document is effective when needed.
Does my loved one need a power of attorney?
Yes, most people, especially those living with dementia, would benefit from a power of attorney. If competency is lost before a POA is in place, family members may need to petition the court for a more restrictive and costly guardianship or conservatorship to manage affairs.
Where can I find assistance locating an elder law attorney?
There are plenty of resources available to find an elder law attorney, including:
- National Academy of Elder Law Attorneys
- Eldercare Locator
- LawHelp.org
- Alzheimer’s Association & AARP’s Community Resource Finder
What is the process for changing power of attorney for a person with dementia?
Changing POA for someone with dementia hinges on their mental capacity. If your loved one still legally understands their actions, they can revoke the existing POA and sign a new one, ideally specifying it supersedes any prior documents.
However, if they have lost mental capacity, they cannot change the POA themselves. In this situation, if the original durable POA names a successor agent, that individual would assume the role. Otherwise, family members may need to petition the court for guardianship or conservatorship, a more complex legal process.
Final Thoughts
As cognitive abilities change, ensuring your loved one’s future care and financial well-being requires careful planning. One of the most powerful documents that can help your family ensure the best possible care while reducing legal obstacles is power of attorney.
Unfortunately, even the best plans may need to change as a loved one’s needs evolve. Knowing how to change power of attorney for someone with dementia should therefore be a key part of long-term care planning, even if your own family member living with dementia has already established POA.
Disclaimer: This article is for informational purposes only.