Can someone with dementia assign Power of Attorney even if they don't know what they're signing?

A fellow caregiver asked...

If a person has dementia and doesn't understand what they are signing, can anyone get power of attorney over them or do they have to be in there right state of mind to authorize someone to be their power of attorney? If a person has power of attorney over someone with dementia who didn't understand what they were signing at the time, is that person legally able to be their power of attorney? Are the documents they signed while this person was power of attorney are the documents valid?

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.

The legal standard for the necessary mental capacity for making a power of attorney is the same as that required to make a 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 a person making a power of attorney must be able to comprehend that he or she is authorizing another individual as an agent to take over managing and controlling financial or medical matters.

Depending on the symptoms"”disorientation about time and space, poor short-term memory, and lapses in logic and judgment"”many people with advanced dementia simply aren't able to meet the legal standard. If they can't, then any power of attorney they signed would not be valid and the named agent would not have legal power to act.

If you are considering contesting the validity of a power of attorney, you should know a bit about what is likely to sway a court in deciding. Specifically, courts"”usually the local probate or superior court"”can consider: --The person making the document's physical condition --Whether the transaction was sensible or imprudent --The trust and confidence between the people involved, and --The maker's mental state as judged by all other acts within a reasonable time before and after finalizing the document.

To make a case, you would probably need to hire a lawyer for help.