A power of attorney (POA) is one of the most important legal documents for people with Alzheimer’s disease, yet many families do not have one prepared. The good news is that obtaining a POA is relatively simple, and having them in place helps eliminate uncertainty and prevent complications when family members have to make tough but critical decisions about their loved one’s care and personal assets.
“A person with Alzheimer’s can lose their mental and even physical capacity to make legal decisions for themselves, and it could happen unexpectedly after the diagnosis. They will therefore become unable to pay their bills, read mail, review important documents, and plan out the rest of their life,” says Marina Shepelsky, Esq., CEO and Founding Attorney of Shepelsky Law Group. “A power of attorney would allow their chosen trusted person to manage many important aspects of their life, like their healthcare and finances.”
Here are five things caregivers and family members should know about creating a power of attorney for someone with Alzheimer’s disease.
People with Alzheimer’s disease should always create their POAs as “durable.”
In a POA, a competent adult (“the principal”) grants a trusted individual (“the agent” or “attorney-in-fact”) the authority to manage financial and personal affairs on their behalf when they are no longer able. This designated agent is responsible for acting in the principal’s best interest — in this case, your loved one with Alzheimer’s disease — and ensuring they are well cared for.
Different types of POA documents grant different authorities at different times. Unlike a simple or non-durable power of attorney, a durable power of attorney remains valid even if the principal becomes incapacitated. The purpose of a durable POA is to plan for medical emergencies and cognitive decline later in life, which is why this type of power of attorney is the most important to obtain after an Alzheimer’s disease diagnosis.
“A durable power of attorney is crucial because they are the only power of attorney that stays active after the principal becomes incapacitated with Alzheimer’s,” says Kelsey Simasko, elder law attorney at Simasko Law. “If your loved one has a non-durable power of attorney and is later diagnosed with Alzheimer’s, then their power of attorney is essentially revoked by the diagnosis.”
Most older adults with dementia need multiple durable POAs to protect their finances and personal affairs, including their healthcare, when they can no longer act on their own behalf.
A durable financial power of attorney names someone to manage financial and personal matters for your loved one once they become incapacitated, such as:
- Signing checks and making deposits
- Paying bills
- Contracting for medical or other professional services
- Selling property
- Getting insurance
- Managing everyday affairs
A durable power of attorney for health care — also called an advance directive — allows your loved one to name a person to handle regarding:
- Care facilities
- Treatment options
- Doctors and other healthcare professionals
- End-of-life care plans, such as do-not-resuscitate (DNR) instructions
“The power of attorney may take steps to protect the principal’s assets from the rising cost of nursing home care if the principal’s Alzheimer’s requires them to live in a long-term nursing facility before they pass away,” says Simasko. “The power of attorney can also take more overt steps to help the principal create an end-of-life plan, like purchasing a pre-paid funeral contract or burial plot.”
An estate planning or elder law attorney can help you identify the right combination of durable POA documents for your loved one and ensure they are drafted and notarized as durable.
A POA can help make end-of-life planning and important decisions less overwhelming for everyone involved.
“When dealing with end-of-life issues, it’s easier for everyone if the important decision of who will be the one doing things like paying bills and selecting doctors and facilities is made by the principal when they are still in a good mental place,” says Shepelsky.
She adds that having a durable POA in place before cognitive decline and end-of-life situations can prevent additional undue stress for loved ones who are already overwhelmed.
“For example, the patient may have been close to their oldest daughter but was not on speaking terms with their younger son and was separated from their spouse. In a legal setting without the POA, the ex-spouse and the children will be the ones deciding what to do. If the principal is the one who decides who to appoint as their POA, that takes the decision out of the family’s hands. They will have to follow the principal’s wishes, and the principal gets dignity and control of their life by appointing their decision-maker.”
It’s best to create a POA as soon as possible following an Alzheimer’s disease diagnosis.
“If a loved one has received an Alzheimer’s diagnosis, the family should run, not walk, to get powers of attorney while the principal has the capacity to sign,” says Simasko. “The signatory must understand what they are signing, so for people with Alzheimer’s, this means executing the documents while having a lucid day. As the disease progresses, individuals tend to have fewer lucid days, which can make executing the power of attorney documents impossible.”
Your loved one may be unable to obtain a POA if they wait until the middle or late stages of their Alzheimer’s disease, when cognition generally begins to decline.
“If the person with Alzheimer’s waits too long and ends up in a space where the notary has doubts about their legal capacity, they simply will not allow the legalization process to go forward, and there will be no power of attorney at all,” says Shepelsky.
In this case, your family may need to appoint a guardian or conservator through the court. A guardian or conservator can make decisions regarding healthcare, finances, shelter, safety, and food.
A POA gives a lot of power to the person named as the agent — choose wisely.
Choosing an agent (or agents) is the most important decision when creating a durable POA. In most cases, an agent is usually a spouse, domestic partner, trusted family member, or friend over the age of 18.
“As the old saying goes, ‘With great power comes great responsibility,’’ Simasko says. “A POA allows the agent to make decisions as if they were the principal, so you have to choose an agent you trust as much as yourself.” She says families and caregivers should ask questions to help their loved one decide if an individual is trustworthy, reliable, and available to make the most important life decisions.
Consider these questions about potential agents:
- Can this person be trusted to put your loved one’s interests above their own and respect your loved one’s wishes and life choices?
- Do they have a good track record of strong judgment and capability in their personal life?
- Has this person ever had problems with addiction, debt, or bankruptcy?
- Does this person have experience managing money and understanding a budget?
A durable power of attorney can be changed or revoked at any time as long as your loved one has the mental capacity to make that decision. If you are concerned about a loved one and do not believe the agent is acting in their best interests, you should speak with an elder law attorney. A lawyer may be able to revoke a POA if the current agent abuses their position.
It’s best to consult an elder law or estate planning attorney when creating POA documents.
You can find DIY power of attorney forms online from state government websites or at health care facilities. Still, Simasko and Shepelsky advise anyone creating a power of attorney to consult with an elder law or estate planning attorney to ensure it is executed correctly.
“With a document as important as a power of attorney, individuals are not advised to create their own, just as the same individuals would not be advised to perform their own dental surgery,” says Simasko. “With websites like LegalZoom, it has never been more tempting to save a few bucks and create your own documents. Unfortunately, [with that method] we often see that the document was not executed correctly or did not include a necessary power; at this point, it is usually too late to execute a new document.”
Shepelsky adds that even savvy people cannot know all the small details and intricacies of elder law and estate planning the way a professional attorney does.
“You must get a professional attorney with experience in estate planning and elder law to work with you on all aspects of planning for a person with Alzheimer’s; mistakes can make a POA or any other document partially or wholly invalid and cost time and money to resolve.”
*The information provided on this website does not, and is not intended to, constitute legal advice; instead, all information, content, and materials available on this site are for general informational purposes only.
