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When an elderly parent begins to suffer diminished mental capacity from dementia or Alzheimer’s disease, a family member will usually need to step in to handle their affairs. Due to strict confidentiality rules in the banking and healthcare industries, the person who would like to assist them will need the legal authority to do so. Spouses inherently possess this authority, but anyone else—including immediate family members such as an adult child—will require special permission.
There are two ways an adult child can take control of an elderly parent’s affairs. Either the parent can willingly grant the authority with a durable power of attorney, or a court can appoint a guardian if the parent lacks the mental capacity to legally appoint an agent. Of the two, the power of attorney is preferential, as substituting someone’s right to manage their own affairs through guardianship is not a light matter. As long as your parent is of sound mind and willing to accept your help, drafting a power of attorney is usually best.
What is a Power of Attorney?
A durable power of attorney is a legally binding document where an adult (referred to as the principal) appoints a legal agent (the attorney-in-fact) by their own free will. A power of attorney can broadly authorize full access to the principal’s assets and affairs, or it can restrict access to certain areas. Most power of attorney documents grant immediate authority to the agent, but the principal can stipulate that the attorney-in-fact only takes control of their affairs in certain circumstances, such as incapacitation. Just as a power of attorney is freely granted, it can also be revoked at any time by the principal.
How to get a Power of Attorney
There are two conditions that a principal to possess the capacity to draft a power of attorney: they need to be of sound mind, and they cannot be subject to duress or undue influence. If your parent is cognizant and willing to issue a power of attorney, the process is fairly simple.
Start with an open conversation about why your parent needs to grant you authorization to assist them. Discuss what you would like to take care of to make life easier for them, and get their input on what they would or would not like for you to do. If they express reluctance or confusion, it’s a good idea to schedule a consultation with an attorney who can explain what’s involved and put their mind at ease.
After drafting the document with the assistance of an attorney, the principal and the witness will need to sign in the presence of a notary public. The witness will attest that the principal is of sound mind, and the notary public will authenticate both signatures to prevent fraud. When choosing a witness to sign the document, it’s best to use a disinterested witness who would not stand to benefit from the power of attorney, that way there are no potential conflicts of interest.
Unfortunately, elderly parents with dementia may not have the mental capacity to grant a power of attorney depending on the progression of their disease. In these cases, it’s best to consult your parent’s doctors or a psychologist. If these professionals deem your parent possesses satisfactory mental capacity, you can proceed with getting a power of attorney. If they believe your parent is incapacitated, you will need to petition the court for guardianship.
What to do if a Parent with Dementia Refuses Help
If a parent with dementia or Alzheimer’s refuses assistance, a power of attorney is not an option. Even if you manage to coerce them into accepting your assistance, that would be considered undue influence, and a judge may invalidate the power of attorney. Instead, you’ll need to petition the court for guardianship.
What is Guardianship?
When a mentally incompetent adult needs someone to handle their affairs, a judge can appoint a guardian to step in and assist them. A guardian has the authority to handle the individual’s personal, medical, and financial affairs. Some common guardianship responsibilities include managing investments, collecting income, paying bills, determining living situations, implementing a care plan, consulting with doctors, and making important medical decisions.
How to Become Appointed as a Guardian
If you would like to be appointed as your parent’s guardian, you’ll need to file a petition with the court in the county where they reside. The court will schedule a hearing, and instruct you to serve notice to the parent, family members, and applicable agencies. At the hearing, you’ll need to prove that the parent in is mentally incompetent, and you’ll need to show that you are qualified to serve as their guardian.
To determine an adult’s mental capacity, the court will usually require a certificate from the ward’s physician or psychiatrist. These professionals will need to certify that the parent is incapacitated, and they’ll also need to determine the extent of their incapacity. A parent who is completely incapacitated will need a guardian with full authority to handle all of their affairs, while a parent who is financially incompetent but cognizant enough to govern their own healthcare may only require assistance with their finances.
Once the court determines the extent of the parent’s incapacity, you will need to prove to the judge that you are the best person to serve as their guardian. The court usually likes to see a care plan in place, along with a successful history of assisting the ward. In addition to assessing your merits, the judge will also look for potential conflicts of interest, and may consider red flags such as a recent bankruptcy, court judgement, criminal record, or a history of misusing the ward’s assets.
What is the Difference between a Guardian and a Conservator?
Court-appointed guardians have the authority to assist with a ward’s personal, financial, and medical needs. A conservator is limited to assisting with just their financial matters, though they have an additional fiduciary duty to manage the ward’s investments prudently. Conservators are usually appointed when an adult has a proven history is mismanaging their finances to the point of financial devastation, or falling victim to repeated acts of fraud, though it should be noted that these are not always cause for conservatorship.
Contact the JacksonWhite Elder Law team today at (480)467-4337 and learn how we can help to ensure you receive the maximum ALTCS benefits available, while preserving as many of your assets as possible.
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