Is it time to get power of attorney over my husband with Alzheimer's disease?

1 answer | Last updated: Sep 29, 2016
1999 tinkerbell asked...

Because my husband has Alzheimer's and he is in the moderate stage, is it time now to get power of Attorney?

Expert Answers

Barbara Repa, a senior editor, is an attorney, a journalist specializing in aging issues, and the author of Your Rights in the Workplace (Nolo), now in its 10th edition.

For many people who care for someone with Alzheimer's, a power of attorney can be a timesaver and a godsend, so it's a good safeguard to get one if he is wiling.

Whether it's possible for your husband to finalize a power of attorney depends on his particular symptoms and capabilities. Some people in the middle stages of Alzheimer's are able to finalize a power of attorney for finances; others no longer have the mental capacity required.

The standard for the necessary mental capacity is the same as that required to make a legal contract. Basically, a person must be able to understand the nature of the transaction and its effect upon his or her rights and interests. So when making a power of attorney for finances, a person must be able to comprehend that another individual is being authorized as an agent to take over managing and controlling financial matters.

Many people suffering common symptoms of moderate-stage Alzheimer's"‚ÄĚdisorientation about time and space, poor short-term memory, and lapses in logic and judgment"‚ÄĚsimply aren't able to meet the legal standard.

Whether an individual is considered legally competent to make a power of attorney for finances depends on the facts and circumstances of each case, which means that those involved have some flexibility. Generally, the issue of mental competence comes up only when someone questions or challenges an agent's authority to handle the financial matters. Courts called upon to judge whether a particular person is competent to make a power of attorney for finances may broadly consider almost any evidence, including opinions of family members and friends, expert opinions, and any previous and subsequent adjudications of incompetence by a legal or medical authority.

Specifically, courts can consider: 1. The person making the document's physical condition 2. Whether the transaction was sensible or not 3. The trust and confidence between the people involved, and 4. The maker's mental state as judged by all other acts within a reasonable time before and after finalizing the document.

If you're concerned that a durable power of attorney for finances may later be challenged, you would be wise to consider these four points and do some advance preparation by making a list of people likely to be good witnesses as well as getting the written opinions from medical experts as to your husband's mental acuity.