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Wednesday, May 16, 2012

Mom's showing signs of dementia, should I get power of attorney for her?

All of us whose parents have reached a certain age notice when our parents begin to show the early signs of memory loss or disorientation. It may be distressing or alarming, but no matter how we feel about it, we ask ourselves what we are supposed to do when this happens. A reader recently asked me the following question:
"My mother has me as an executor in her will. She is showing signs of senility. Should I consider getting a power of attorney for my mom now before things get worse? My dad is even older, but not showing signs of senility."

The parents in this family are lucky that they have a child who is alert to changes and willing to offer the help necessary. The fact that this child is the executor is not relevant to the question, except that the executor appointment shows that the parents trust the child to deal with legal matters.

Yes, I believe that these parents should have powers of attorney documents put into place, assuming they are still able to understand and sign them. The type of document needed is often called "enduring" or "continuing", or "power of attorney for property". This type of power of attorney, unlike the regular business power of attorney, is designed to last or continue even though its maker might lose mental capacity after the document is made.

The reader mentions that the father seems not to have any signs of incapacity. I would recommend that both parents prepare documents now and not wait until the father also begins to lose his capacity. I also recommend that the parents consider signing health care directives to put someone in charge of medical and personal decisions should that become necessary.

A question that will have to be addressed is whether the power of attorney document is to come into effect immediately or to come into effect at a future date. The future date is the date that the parent loses mental capacity. Often when a parent is already demonstrating signs of memory loss, the best option is to have the document come into effect right away. In this reader's situation, perhaps the mother's power of attorney should come into effect immediately but the father's document should come into effect in the future if he should need it. This is something that can be decided between the parents and their lawyer at the time the documents are prepared.

A significant issue addressed in this reader's question is that of acting now before things get worse. Typically, seniors with dementia or Alzheimer's disease do deteriorate (remember I'm a lawyer, not a doctor, and I'm speaking only from my personal observations). Therefore, if you wait too long to act, the opportunity to have legal documents prepared may well be lost. A person must have mental capacity to sign legal documents. Capacity doesn't have to be perfect, and most seniors who are in the early stages of deterioration are still capable of signing documents.

Should seniors see a lawyer to have wills or powers of attorney prepared, the lawyer will assess the senior for capacity. An experienced lawyer will know that a person  who is beginning to demonstrate incapacity will have good days and bad days, and will do everything she can to maximize the senior's likelihood of having a good day. For example, the lawyer might meet the senior at the senior's home rather than asking the senior to come downtown, which could be disorienting.

It's clear that the child in this question understands the importance of a power of attorney. It also sounds like he or she is willing to act as the attorney in that document. However, it's essential to remember that whether the document is prepared and the choice of attorney are decisions that belong to the parent. The child can raise the subject and provide practical help like a ride to the lawyer's office, but ultimately it's up to the parents to sign or not sign documents.

The parents might choose someone else to act under the power of attorney, so the reader should be prepared for that.

Despite the fact that time becomes the enemy once incapacity begins to emerge, try not to rush elderly parents into specific decisions. Rushing them often results in nothing but upsetting or frightening them, so be patient.

2 comments:

  1. being in that situation is not easy, especially when it concern our aging parents.
    Most people are having the same predicament and i am glad that i had read a post concerning the same circumstances. I am looking forward for your updates.

    ReplyDelete
  2. There is a bank that has been not releasing the estate funds to the executrix ... the will has been probated and two other financial institutions have already released the funds of the estate .. Is there any laws that govern how long a bank can with hold a bank account from the inheritors ?

    ReplyDelete

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