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

4 answers | Last updated: Oct 16, 2016
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 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.

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: _______________________________________

Community Answers

A fellow caregiver answered...

It would be helpful to contact an attorney who specializes in elder care to guide you through the legal issues involved.

Joege18 answered...

There are instructional videos on how to fill one out a power of attorney form -

A fellow caregiver answered...

My mother granted me POA effective immediately upon signing/notarizing. She granted me full authority over all matters except medical, which I couldn't do because me deep emotional attachment to her, to act as if she herself were acting in all but medical regards. Have the POA document worded appropriately according to her wishes, speak to her and ask her what she wants to do. If she's constantly in states of dementia like my mother is becoming more and more, then I am already prepared to handle her affairs while she's in these states. Getting set up with the banks, property authorities for your county, etc., will take time. A bank, for instance, can refuse to acknowledge your POA and you will have to see a probate judge to have him order them to recognize it, who knows how many months could go by while your/mine mother's food money is inaccessible. It's been 4-5 days since she's been really lucid so I cannot even accept Medical POA that she's been asking me to become until she's in a lucid state. This whole business has to be done clearly, concisely, and according to your loved one's true wishes. In California they specify that it's best to use the durable power of attorney form from probate code 4011, check your state information to see which form the banks there will accept more readily. As for having her declared incapacitated, ask you feel that she's completely incapacitated and unable to make normal decisions that you could carry out on her behalf? If so, then I advise at least 2 doctor's declaring that condition. If she has periods of lucidity then use those times well to get her wishes clear. Where I'm at, I don't need to wait for a declaration of incapacity, I have full authority now to act on her behalf as if she were acting herself. We made it that way because she's in a wheelchair, 73 with Alzheimer's and dementia, and isn't able to drive or go anywhere without my younger sister who controls her, among other things, that's why my mother made it durable, effective immediately, and able to act at any time to protect her best interest. Sorry that was so long, I've been emotional....