How do I get power of attorney over my mother who has dementia?

According to the Centers for Disease Control and Prevention, over 5 million Americans are living with Alzheimer's disease and related dementias, making it critical for families to address legal planning. Securing a power of attorney for a mother with dementia requires understanding crucial timing and legal procedures based on her current mental capacity.

Quick Summary

Securing legal authority for a parent with dementia requires action while they retain mental capacity for a power of attorney (POA), or pursuing a court-ordered guardianship or conservatorship if that capacity is lost. The specific path depends on the disease's progression and your mother's ability to understand her decisions. Professional legal guidance is essential to ensure proper authorization and prevent future complications.

Key Points

• Mental Capacity is Crucial: A person with dementia can only sign a Power of Attorney (POA) while they are still mentally competent. If they lack capacity, a POA is not an option.

• POA vs. Guardianship: If your mother has capacity, pursue a POA. If she does not, you must petition the court for a guardianship (person) and/or conservatorship (finances).

• Durable POA is Key: For a dementia diagnosis, ensure the POA is 'durable' so it remains valid after your mother becomes incapacitated.

• Consult an Elder Law Attorney: Legal requirements vary by state. An elder law specialist is essential for drafting a valid POA or guiding you through the complex guardianship court process.

• Plan Early: Acting proactively in the early stages of dementia is easier and less expensive than pursuing court intervention later on.

• Guardianship is a Court-Imposed Process: Unlike a voluntary POA, guardianship is a public and often lengthy court procedure that gives the court significant oversight.

Assessing Your Mother's Mental Capacity

The most critical factor in obtaining legal authority is your mother's current mental capacity. A power of attorney (POA) is a voluntary legal document that she must sign, demonstrating she understands the document and its implications. If she is in the early stages of dementia and is still capable of making sound decisions, you can proceed with a POA. However, if her dementia has progressed to a point where she no longer understands the purpose of the document or her actions, she cannot legally grant you a POA. Attempting to get a POA signed under these conditions could lead to it being invalidated by a court.

Determining Mental Competence

Determining mental competence is a complex process and should be done with professional input. While you may have a personal opinion, a lawyer will need to make an assessment, often relying on a physician's evaluation. Here are some factors considered in assessing legal capacity:

• Understanding and Retaining Information: Can she comprehend the nature of the POA and the powers it grants?
• Expressing a Clear Decision: Can she communicate her wishes and decisions clearly and consistently?
• Appreciating Consequences: Does she understand the potential outcomes of signing the document?

If her competence is in question, a lawyer may interview her privately to confirm she is acting voluntarily and with a clear understanding. It is best to have these discussions during the early stages of the disease, on a 'good day' when her cognitive function is highest.

Obtaining a Power of Attorney in Early-Stage Dementia

If your mother still has the mental capacity to make her own decisions, a durable power of attorney is the best and most straightforward option. Unlike a standard POA which terminates upon the principal's incapacitation, a durable POA remains in effect, a crucial feature for a dementia diagnosis.

Steps to Secure a Durable Power of Attorney

1. Consult an Elder Law Attorney: State laws regarding POAs vary significantly. An experienced elder law attorney will provide guidance, draft the necessary documents, and ensure all requirements are met. This protects both you and your mother legally.
2. Discuss the Plan with Your Mother: Have a frank but compassionate conversation about her wishes for future care. Explain that a POA is a way for her to maintain control and ensure her desires are respected, even when she can no longer communicate them. Frame it as planning for her well-being, not taking away her freedom.
3. Gather Necessary Information: Be prepared with your mother's personal information, her financial details (accounts, assets), and a list of her healthcare providers.
4. Draft the Documents: An attorney will draft a durable financial power of attorney and a durable medical power of attorney (also known as an advance directive or health care proxy). Splitting these roles among family members is also an option.
5. Sign and Notarize: Your mother must sign the document in the presence of a notary public and, in some states, witnesses. The notary verifies her identity and that she signed voluntarily. Some states may also require witnesses who do not stand to benefit from the POA to prevent conflicts of interest.
6. Store and Distribute: Keep the original signed documents in a safe, accessible place. Provide copies to all relevant parties, including you (the agent), any successor agents, your mother's primary care physician, and her bank.

Pursuing Guardianship or Conservatorship in Late-Stage Dementia

If your mother lacks the mental capacity to sign a POA, you cannot legally obtain one. In this scenario, the only path forward is to petition the court for a guardianship and/or conservatorship.

The Court Petition Process

1. Consult an Elder Law Attorney: This is a complex and often costly legal process. An attorney specializing in elder law is essential for navigating the court system and compiling the required documentation.
2. File a Petition: Your attorney will file a petition with the probate court in your mother's county of residence, requesting that you be appointed her guardian and/or conservator.
3. Provide Evidence of Incapacity: The court will require evidence of your mother's inability to make decisions. This typically includes medical and psychological evaluations from her doctors and may involve a court-appointed physician.
4. Attend a Court Hearing: A hearing will be scheduled where a judge will review the evidence. Your mother has the right to attend and have her own legal counsel, though an attorney for her may be appointed by the court if she cannot retain one herself. The judge will ultimately determine if she is incapacitated and if appointing you is in her best interest.
5. Assume the Fiduciary Role: If the court grants your petition, you will assume the role of guardian (for personal and medical decisions) and/or conservator (for financial decisions). This is a fiduciary duty, meaning you must act solely in your mother's best interest and may be required to provide the court with regular reports.

Power of Attorney vs. Guardianship/Conservatorship

Understanding the fundamental differences between a POA and court-ordered guardianship is key to making the right choice, which depends on your mother's stage of dementia.

Feature	Power of Attorney (POA)	Guardianship/Conservatorship
Initiation	Voluntarily established by the principal (your mother) while she is mentally competent.	Court-imposed after the principal is deemed incapacitated.
Principal's Role	Retains decision-making power until incapacitated; chooses agent and terms.	Loses control and most rights; court appoints the guardian.
Cost	Generally less expensive, involving legal fees for drafting and consultation.	Significantly more expensive, requiring court filing fees, attorney fees, and ongoing administrative costs.
Process	Private and straightforward, involving signing documents with an attorney and notary.	Public and often lengthy, involving court petitions, hearings, and formal reports.
Oversight	The agent is accountable to the principal, but there is less formal oversight.	The court closely monitors the guardian's actions and requires regular reports.
Flexibility	The POA can be easily customized and can also be revoked by the principal while still competent.	The guardian's authority is determined by the court, with limited flexibility.

Conclusion: Start the Conversation Early

Dealing with the legal aspects of a dementia diagnosis is undoubtedly challenging, but proactive planning can protect your mother's wishes and save your family significant stress and expense. While obtaining a POA is simpler and more respectful of your mother's autonomy, it must be done in the early stages while she is still mentally capable. If the disease has progressed and she is no longer competent, the court-supervised process of guardianship or conservatorship becomes the necessary path. In either case, working with a qualified elder law attorney is the most reliable way to navigate this sensitive and complex journey and ensure your mother's best interests are upheld.

For additional information and resources on elder law topics, you can consult the National Academy of Elder Law Attorneys (NAELA).

Frequently Asked Questions

What is the difference between a durable and a springing POA?

A durable POA takes effect immediately upon signing and remains valid if the principal becomes incapacitated. A springing POA only becomes effective upon a triggering event, such as a doctor certifying the principal's incapacitation. Due to potential delays in getting certification, a durable POA is often preferred for dementia planning.

What if my mother refuses to sign a POA?

If your mother is mentally competent but refuses, you cannot force her. You can try to have a calm, sensitive conversation with her attorney present to explain why it's necessary. If she remains unwilling and later loses capacity, your only option would be to pursue a court-ordered guardianship.

Can I use an online legal form for a POA?

While online forms exist, they are not recommended for a situation involving dementia. State laws differ greatly, and an elder law attorney can ensure the document meets all legal requirements and holds up in court. Using an invalid form can lead to significant problems down the road.

How much does it cost to get a POA or guardianship?

The cost varies widely. Obtaining a POA is generally far less expensive, involving fees for an attorney's time to draft and notarize the document. Guardianship is more costly and complex, with expenses including court fees, attorney fees, and potential ongoing administrative costs.

What is a medical power of attorney vs. a financial power of attorney?

A medical POA (or advance directive) authorizes an agent to make healthcare decisions. A financial POA authorizes an agent to manage finances. You can appoint the same person for both roles or different people for each, depending on what works best for your family.

What if there is family disagreement about who should be the POA or guardian?

Disagreements can complicate matters. If a POA is established, the designated agent has the legal authority. If there is no POA and you must go to court for guardianship, the judge will resolve the family dispute by deciding who is best suited to serve.

Is guardianship permanent?

Guardianship can be permanent, but it is not irreversible. The court can revoke or modify the guardianship if circumstances change, or if a person's capacity improves (though this is rare with progressive dementia). The court will also end the guardianship upon the death of the ward.