This is an issue that I have found has popped up more than you would ever believe in families who have a person with dementia in them. This issue raises its head all through the disease, not just at the end stage, where death is imminent.
Let me be clear. A power of attorney, whether it is for finances or health DOES NOT legally give the person with it the power to make decisions solely by themselves for the individual with dementia. What a power of attorney is THE SHARING OF POWER OF DECISION MAKING WITH THE PERSON WITH DEMENTIA. The person with dementia still has all the rights afforded to any US citizen, including the power to make decisions on their health and financial affairs on their own. They lose no power by giving a power of attorney to someone else. They just agree to share their power if they are disabled, (and the meaning of disabled is a gray area under the law).They can overrule the person with the POA at anytime. They can revoke the POA at anytime.
The ONLY time that another has the power to speak for the person with dementia is if they go to (probate) court and have a judge give GUARDIANSHIP of that person to them. If Guardianship is awarded, then the person with dementia loses all rights given to US citizens (including the right to vote!). Guardianship cannot be revoked except by another court. A Guardianship costs real money. I estimate a minimum of $5,000 if uncontested; way more if contested. The person with dementia is automatically appointed a lawyer to represent their interests by the court, so the person who wants to be Guardian (and their lawyer) has to overcome that at a minimum, and convince the judge that the person with dementia is “incompetent”, not just “incapacitated”. Sometimes the awarding of Guardianship or not is determined by the individual judges interpretation of the law. Trust me that will vary from judge to judge!
That said, it’s really not all doom and gloom. Most of society has no idea of this. When a person has a POA it’s automatically accepted as OK for the person to speak for the person with dementia (mostly) and is not questioned. This includes doctors, banks and what have you. So you need to have both forms of the Powers of Attorney.
Not only that, but you need to carry a copy of the health care power of attorney in the glove box of your car so you can walk into the Emergency Room , waive it at the ER staff and immediately be an advocate for the person with dementia. Don’t let the ER doctors rule without question! Many times they are right, but sometimes they are wrong, or are ordering unnecessary tests, etc. So if you don’t have the Medical Power of Attorney, please get it now. It is the minimum you need to be able to speak for your care partner in time of distress. Google Medical Power of Attorney and the state you live in name. There very well may be a free form that you can download online. You may have to get it notarized or witnessed, it varies; but it is worth it.
Click here to read Carole Larkin’s blog, “Are Adult Children Legally Responsible for Parents’ Long Term Costs?”
Carole Larkin MA, CMC, CAEd, DCP, QDCS, EICS is a nationally known expert in Alzheimer’s and related Dementias care. She is a Certified Geriatric Care Manager who specializes in helping families with Alzheimer’s and related dementias issues. She consults with families on the telephone and in person, on family problems related to the dementias. She trains caregivers in person and via video. One of her training videos is on You Tube. Other videos are on the videos page of her company’s website: www.thirdageservices.com
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