How do I get power of attorney for my mother with dementia?

5 answers | Last updated: Nov 18, 2016
Rossanajohn asked...

How do I obtain power of attorney for my mother if she has already been diagnosed with dementia? She is in the early stage of dementia.

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.

Whether you can obtain a power of attorney for your mother may depend more specifically on her mental condition.

There is a legal requirement that the person for whom a power of attorney is made must be "of sound mind." This mental competency requirement isn't too onerous to meet, but can be elusive to some people suffering from dementia. Generally, the competency requirement mandates that a person must be able to understand what a power of attorney is and does--and must also be able to understand that he or she is making one.

If your mother's condition does not allow her to meet this standard, your alternative would be to secure a legal guardianship or conservatorship for her--a procedure that takes more time and effort. If this might be an option for you, consult your local probate court for more information.

For more on guardianships and conservatorships, see Conservatorship and Adult Guardianship: A Beginner's Guide.

Community Answers

The caregiver's voice answered...

People diagnosed with dementia can still function in the early stages. Many can even drive and manage their own affairs.

I am proud of you for taking this step when she is still in the early stage of dementia.

It's a question of her lucidity (cognition) and ability to answer questions an elder law attorney would ask of her to ensure she is of "sound mind" and know what she is agreeing to.

Be sure to find an "elder law" attorney this specialty is versed in drafting documents for loved ones who have questionable ability to manage their own affairs.

Contact your local department on aging for a list of elder law attorneys in your area.

A fellow caregiver answered...

I am a Guardianship Social Worker. When your loved one cannot make legal decisions for themselves then in NC a Guardian needs to be appointed. The Clerk of Court Special Proceedings Office handles the petition. It is often in the best interest of the person if a relative become Guardian rather than a Public Guarding such as Dept of Social Services or a Mental Health Provider. However, sometimes the Public Guardian can be more effective for a loved one, especally if the loved one won't listen to the relative. The independent guardian will make the decisions and the loved one can remain in that role.

Bosco2blessed answered...

My Mom did a "medical POA" several years ago listing my sister & I POA. During a visit to her physician when we learned she had dementia the Dr advised her that she should have a durable POA and asked her who she would select as her POA she said my sister and I. However, prior to her becoming less "lucid"; following this Dr visit, she would not sign a POA. Can the executed medical POA and the visit note from her Dr stating she would have my sister & I as Durable POA make us in fact durable POAs?

Michellemoo answered...

The issue is her mental capacity. It may be best to seek the advice of a doctor who can assess whether your mother has the mental capacity to make certain decisions for herself.

If she does then you’d be advised to speak to a lawyer about making a power of attorney whilst she is still able to do so. It’s probably also important for your mother to check her will still reflects her wishes or make a will if she has not done so already. This way she has some comfort her future is being looked after by the people she trusts.

To give you some comfort, in the UK so presumably similar across the Atlantic “A person must be assumed to have capacity unless it is established that he/she lacks capacity”

There’s a great guide here on dementia and the law. It is UK based but the principles are still very relevant.