The Scenario
Often, I receive telephone calls from a family member asking me to prepare a Power of Attorney for a parent. It is needed fast, I am told, because the parent needs nursing home care. My conversation quickly reveals that the parent is suffering from dementia. Legally, this calls into question whether the parent has the capacity to sign such a document. If not, then it is too late to create a Power of Attorney, and a guardianship action must be brought before the Court.
What’s Needed to Sign a Power of Attorney?
To sign a Power of Attorney, Last Will and Testament, and other legal documents, a person must have the mental capacity to do so. They must understand the implications of their act, among other things. If such a person has dementia, it calls into question whether he or she understood what they were doing, and it opens the situation to legal attack should a third party object. Often, I ask for a writing from a physician stating that the person has capacity before I proceed. This, of course, takes time, and may interfere with the family’s plans.
If the physician states that the patient does not have the capacity to understand the implications of signing a Power of Attorney, I cannot, ethically, prepare one and have it signed. A guardianship proceeding will be necessary. This will take two to three months.
Avoid the Headache, Plan Ahead
All of this can be avoided if you plan ahead. Be responsible and care about your family. I often hear, “I don’t need a Power of Attorney yet.” If you wait until you need one, it will be too late.
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