Can Someone With Dementia Change a Power of Attorney?

According to the Alzheimer's Association, millions of families are affected by dementia, bringing with it complex legal questions surrounding a loved one's care. A critical one is: Can someone with dementia change a power of attorney? The answer depends entirely on the individual's legal capacity at the time.

Quick Summary

Whether a person with dementia can change a power of attorney depends on their current legal capacity to understand the document and its implications. While possible in the early stages, it is no longer an option as the disease progresses and mental competency declines, requiring alternative legal actions.

Key Points

• Legal Capacity is Key: The ability to change a power of attorney depends entirely on whether the individual with dementia still has the legal capacity to understand their actions and the implications.

• Early Stages are Optimal: The best time to make or change a power of attorney is in the early stages of dementia when the person is still mentally competent.

• Loss of Capacity Stops Changes: Once legal capacity is lost due to advanced dementia, the person can no longer legally change or revoke their power of attorney.

• Court Intervention May Be Needed: In cases of diminished capacity, concerned family members may need to petition a court for guardianship or conservatorship to override or manage the power of attorney.

• Formal Revocation Required: To change a power of attorney, the old one must be formally and clearly revoked in writing before a new one is created.

• Consult an Elder Law Attorney: Navigating these legal complexities effectively requires the expertise of an elder law attorney to ensure all steps are followed correctly.

The Concept of Legal Capacity

Legal capacity, also known as mental competence, is essential for a person to execute legal documents. A dementia diagnosis doesn't automatically remove this capacity, as it's evaluated on a case-by-case basis and can fluctuate, particularly in the early stages. To have legal capacity, a person generally needs to understand the nature and effect of the document they are signing, the potential consequences, and relevant personal details like their assets and relationships. Individuals in the early stages of dementia who still meet these criteria can often make or change a power of attorney (POA). However, as the disease progresses and cognitive function deteriorates, this capacity is lost, emphasizing the importance of early legal planning.

Changing a POA in the Early Stages

If a person with early-stage dementia retains legal capacity, they can change or revoke a POA. The process should involve several key steps to ensure legal validity:

1. Revoke the Original POA: A formal, written revocation document stating the intent to cancel the existing POA must be prepared and signed.
2. Create a New POA: A new power of attorney should be executed, naming a new agent or outlining new terms and explicitly stating it replaces previous versions.
3. Destroy Old Copies: To prevent misuse, all copies of the revoked POA should be destroyed.
4. Notify Relevant Parties: The former agent and all affected financial and healthcare institutions must be formally notified of the change.

Working with an elder law attorney is crucial to ensure state-specific legal requirements for witnessing and notarization are met, which helps validate the change if challenged later.

What to Do When Capacity is Lost

When dementia advances and a person loses the mental capacity to make legal decisions, they can no longer legally change or revoke a POA. In such cases, other legal options are necessary.

• Successor Agent: If the original durable POA named a successor, that individual typically assumes the role.
• Guardianship or Conservatorship: If no POA exists or the current agent is acting improperly, family members may seek a court-ordered guardianship or conservatorship. This is a more involved legal process where a court appoints someone to make decisions for the incapacitated person, potentially overriding a prior POA.

Navigating Legal Challenges

Concerns about whether a person with advanced dementia was improperly influenced to change a POA or if an agent is abusing their authority can lead to legal challenges, usually in probate court. The person initiating the challenge must provide evidence, such as medical records or testimony, to demonstrate the principal's lack of capacity or the agent's misconduct. The court will evaluate the evidence and can revoke the POA and appoint a guardian if the challenge is successful.

A Comparison of Options When Capacity is an Issue

Scenario	Key Factor	Principal's Role	Third-Party Role	Pros	Cons
Early-Stage Change	Demonstrable legal capacity	Signs revocation and new POA with legal counsel	Witnesses or notary confirm sound mind	Maintains principal's autonomy; avoids court	Must be done early; capacity can be challenged
Guardian/Conservator Appointment	Loss of legal capacity	Inactive; their legal capacity is evaluated	Petitions court to establish guardianship	Protects vulnerable person; ensures decisions are overseen by court	Expensive, lengthy, and restrictive of the principal's rights
Challenging in Court	Agent misconduct or invalid POA creation	Evaluated by a medical expert	Petitions court with evidence of wrongdoing	Can protect principal from abuse; ensures wishes are upheld	Costly, time-consuming; emotionally draining for all involved

The Importance of an Elder Law Attorney

Due to the complexities and emotional aspects involved, consulting an experienced elder law attorney is highly recommended. An attorney can assess legal capacity, guide the process of changing a POA, or assist with petitioning the court for guardianship if needed. Legal expertise ensures compliance with state laws and proper documentation, protecting the individual's interests. For more information, the Alzheimer's Association website offers valuable resources on legal planning.

Conclusion

A person with dementia can change a power of attorney only if they possess legal capacity at that time. This is generally possible in the early stages but becomes impossible as the disease progresses and capacity is lost. In later stages, court intervention may be necessary to appoint a guardian or conservator. Proactive legal planning, including appointing a trustworthy agent and successor, is the best approach to honor a person's wishes and avoid difficult legal disputes.

Frequently Asked Questions

Can a person with early-stage dementia change a power of attorney?

Yes, a person with early-stage dementia can change a power of attorney, provided they still have the mental capacity to understand the document and the consequences of their decision. This change must be done formally through a written revocation and the creation of a new, superseding document.

What happens if a power of attorney needs to be changed and the person has lost capacity?

If the person has lost legal capacity, they cannot change the power of attorney themselves. In this situation, if the original document named a successor agent, that individual would take over. Otherwise, concerned parties may need to go to court to establish a guardianship or conservatorship.

Can a family member override a power of attorney for someone with dementia?

A family member generally cannot override a power of attorney on their own. However, if they have evidence that the current agent is acting improperly or that the person lacked capacity when the POA was created, they can petition a court to intervene.

How can I challenge a power of attorney for a parent with dementia?

To challenge a power of attorney, you must file a petition in court, usually probate court. You will need to provide evidence, such as medical evaluations or documentation of misuse of power, to prove that the parent lacked capacity or that the agent is acting improperly.

Do I need a lawyer to change a power of attorney for someone with dementia?

While it may be possible to change a POA without a lawyer, it is highly recommended to use an elder law attorney. They can assess legal capacity, ensure all state-specific requirements are met, and help formalize the process to prevent future challenges.

Is a verbal revocation of a power of attorney valid?

No, a verbal revocation is typically not sufficient. To be legally valid, the revocation of a power of attorney must be in writing and clearly signed by the person with the intent to cancel the document, preferably with notarization.

What is the difference between a power of attorney and a guardianship?

A power of attorney is voluntarily appointed by an individual to an agent, whereas a guardianship (or conservatorship) is court-ordered. A guardianship is typically established only after a person has been deemed incapacitated by a court.