How Can I Assume Power of Attorney When Someone with Dementia Needs It?

A fellow caregiver asked...

How can I verify that a person with dementia lacks "mental capacity," so I can take over as agent in a power of attorney?

Expert Answer

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.

Usually it's a doctor -- or sometimes two of them -- who makes the judgment call about whether a person lacks mental capacity. And that determination is required before a power of attorney for either health care or finances can take effect, empowering you to act on another's behalf.

In general, the doctor will consider whether the person can:

  • Understand the subject area covered by the power of attorney.

  • Understand the implications and importance of the matters involved.

  • Make and communicate reasoned choices.

The power of attorney document itself will often specify how mental capacity should be determined, so look carefully at its wording.

For example, the power of attorney may specify that a particular doctor with whom the person has a trusting relationship must certify in writing when he or she no longer has sufficient mental capacity. Although the doctor may not be available when the time comes, you and others honoring the document must make an attempt to locate that doctor and solicit his or her opinion.

Another common approach is for a power of attorney to specify that "two licensed physicians" must agree that a person lacks the required mental capacity.

And finally, while it's somewhat rare and occurs most often for people who have a history of mental health issues, the power of attorney may specify an occurrence, such as being involuntarily committed for either outpatient or inpatient care, that should be taken as proof of mental incapacity, and as a signal that the named agent should take over in making decisions.

If the document doesn't specify a procedure or condition, then it's likely that you'll need to get at least one doctor's written verification that the person lacks mental competence. Most businesses and financial organizations won't allow you to act as an agent without it.

The certification can come from an attending doctor, primary care doctor, psychiatrist, psychologist, or other health practitioner.

No law specifies a particular form or format for mental incapacity verification. Some institutions offer their own forms for this purpose. Many medical professionals have a form on hand to complete and sign.

If you need to get verification of mental incapacity, you can ask a medical practitioner to complete a simple form, such as the one below:

Certification of Incapacity

I certify that [name of person] lacks the mental capacity to make important decisions independently.

Dated: __________________________________________

Signature: ________________________________________

Printed name: _____________________________________

Address: _________________________________________

Telephone: _______________________________________