Frederick & Frederick PLC | James P Frederick
You can only get a POA from someone who is willing to give it to you. Someone with dementia may or may not have the necessary mental capacity to sign a POA. You should involve an attorney who can help you assess the situation and prepare the paperwork, if necessary. If the principal lacks capacity, then your only resort is to seek probate appointment as guardian and conservator.
Answer Applies to: Michigan
Richard J. Keyes Attorney at Law | Richard J. Keyes
Someone with dementia does not have the capacity to execute a power of attorney. In Missouri, you need to go through the probate court and get a guardianship and conservatorship set up for the individual. A guardianship is control over the individual and the conservatorship is control over the assets.
Answer Applies to: Missouri
Irsfeld, Irsfeld & Younger LLP | Norman H. Green
If they already have dementia, depending on how sever, it may be too late for a power of atty. You may need to establish a conservatorship. But if they are sometimes clear, you get the power of attorney the same way as with anybody else: They sign before a notary.
Answer Applies to: California
Glenn M. Wall, Attorney at Law | Glenn M. Wall
You can't. A person with dementia is likely not competent to sign a legal document. If you want to take control of this person's finances, you will have to go to Probate Court and be named his/her guardian/custodian.
Answer Applies to: Georgia
Charles M. Schiff, Attorney at Law | Charles M. Schiff
Power of Attorney is granted by the person on whose behalf the attorney acts. The person cannot grant Power of Attorney unless he knows what he is granting. If the person lacks this clarity of mind you will need either a custodianship or a guardianship, or both. This is done through a court and requires a finding that the person is unable to handle his own affairs.
Answer Applies to: Minnesota
Michael B. McFarland, P.A. | Michael B. McFarland
If someone already has dementia to the point where he or she can't knowingly and voluntarily grant a power of attorney, it would be too late. One would have to be appointed by the court as guardian and/or conservator. If the person just has occasional "senior moments" and is aware and competent at other times, you may be able to get a power of attorney; but you would want the notary public and possibly a couple of witnesses who would be able to testify to the person's competence and understanding at the time of signing.
Answer Applies to: Idaho
Kunin & Carman | Laura A. Deeter
If someone has dementia, they likely do not have the mental capacity to sign a power of attorney. The person would need to be evaluated by a qualified doctor who would have to say that the person has sufficient mental capacity to execute the document. If someone is needed to make decisions and the person lacks capacity, you need to obtain a guardianship.
Answer Applies to: Nevada
Minor, Bandonis and Haggerty, P.C. | Brian Haggerty
You can't. In order to give another person power of attorney, the principal has to have legal capacity to understand the nature of that act. If the principal is already incapacitated, then you need to petition the circuit court for conservatorship.
Answer Applies to: Oregon
Law Office of Edward M. Burgh, APC | Edward M. Burgh
In order to get a "Power of Attorney" a person can't have dementia. The only way you can proceed is to hire an Probate Attorney and have him petition the Court to have ner declared a ward of the Court, in other words open a Conservatorship.
Answer Applies to: California
Doland & Fraade | Michael Doland
A grantor must be competent to be able to give a power of attorney to another. Depending of the degree of dementia, granting a power of attorney may no longer be possible. If still possible, use a "durable power of attorney" anticipating that things will get worse and someone may have to make medical and financial decisions at a later time.
Answer Applies to: California
Dennis E. Valentine Law Firm | Dennis Valentine
A person can appoint anyone as an agent with a power of attorney. However, the appointment can only occur when the person making the appointment is competent and understands the significance of the appointment. In your circumstance, you would have to talk to the person's medical doctor and an attorney to determine whether the person with dementia is still competent to make that appointment. This raises a note of caution for anyone in your circumstance. You need to have a person sign a medical or financial power of attorney before it is needed. I hope this advice helps. If the person is in the early stages of dementia, the person may still be competent, but you should treat this matter as urgent.
Answer Applies to: Colorado
Law Offices of Phillip Day | Phillip Day
If the person is suffering from dementia 100% of the time then it is too late. You have to pursue a guardianship proceeding. However if the dementia is early on and hasn't set in entirely such that there are periods of lucidity where the client understand what he or she is signing, then the person can sign a power of attorney. It might be a good idea to attach an affidavit from a physician stating that on such and such date that the document was signed the client was in good mental health and the doctor did not observe any issues. Such an affidavit could minimize a challenge although not completely negate the possibility. Attorneys are not doctors and are not expected to be able to diagnose mental conditions, however, if the attorney observes behavior that is not within normalcy and the client is not understanding what they are signing, then the attorney should not allow the client to sign.
Answer Applies to: Florida
R. Steven Chambers PLLC | R. Steven Chambers PLLC
If the person with dementia is incapacitated mentally it's too late to get a power of attorney. You will probably have to get the court to appoint a guardian of the person's property. This is why powers of attorney, wills, trusts, advance medical directives (living wills) and durable powers of attorney (medical powers of attorney) all should be done early.
Answer Applies to: Utah
The Kapoor Law Firm | Dave Kapoor
If that person has dementia to the point that they would be considered legally incapacitated, you will not be able to have an attorney draft a Power of Attorney for that person because they will not be legally competent to sign the document. You would have to contact an experienced Probate attorney in your area to explore your options and possibly file an action in your local Probate Court to have a Guardian appointed for the person with dementia. If the person is not yet in the late stages of dementia and still has legal capacity to sign a Power of Attorney document, you should contact a local experienced Estate Planning attorney to draft the document.
Answer Applies to: Michigan
Sebby Law Office | Jayne Sebby
Only the person granting the power of attorney has the authority to decide who can act on his or her behalf. If the person is no longer legally competent to make that decision, you may have to petition a court to be named a conservator (financial matters) and/or guardian (care of person & property) for that person.
Answer Applies to: Nebraska
Angela Troccoli, Esquire | Angela Troccoli, Esquire
You can have a POA executed if the person is still in their right mind. But, if they no longer have moments of clarity then you will need to file papers with the Court seeking Guardianship and then POA.
Answer Applies to: Connecticut
Mains Law Office | Julie Mains
It depends on the extent of the dementia. The person must be competent to consent to the Power of Attorney. Otherwise, a court appointed conservator of the estate is needed. The capacity of an individual required to execute a DPOA is set by Calfiornia statute and is the same capactiy a natural person has in making a contract. See California Probate Code Section 4120. A person is mentally competent as long as they can understand the rights, responsibilities, risks or benefits involved in financial decisions and the potential consequences of what they decide. In other words, they must undertand that they are giving the power over their finances to another perosn. California Probate Code Section 810-813 further explains the standards for determining whether a person has the capacity to enter into a contract. Probate Code Section 811 provides: 811. (a) A determination that a person is of unsound mind or lacks the capacity to make a decision or do a certain act, including, but not limited to, the incapacity to contract, to make a conveyance, to marry, to make medical decisions, to execute wills, or to execute trusts, shall be supported by evidence of a deficit in at least one of the following mental functions, subject to subdivision (b), and evidence of a correlation between the deficit or deficits and the decision or acts in question: (1) Alertness and attention, including, but not limited to, the following: (A) Level of arousal or consciousness. (B) Orientation to time, place, person, and situation. (C) Ability to attend and concentrate. (2) Information processing, including, but not limited to, the following: (A) Short- and long-term memory, including immediate recall. (B) Ability to understand or communicate with others, either verbally or otherwise. (C) Recognition of familiar objects and familiar persons. (D) Ability to understand and appreciate quantities. (E) Ability to reason using abstract concepts. (F) Ability to plan, organize, and carry out actions in one's own rational self-interest. (G) Ability to reason logically. (3) Thought processes. Deficits in these functions may be demonstrated by the presence of the following: (A) Severely disorganized thinking. (B) Hallucinations. (C) Delusions. (D) Uncontrollable, repetitive, or intrusive thoughts. (4) Ability to modulate mood and affect. Deficits in this ability may be demonstrated by the presence of a pervasive and persistent or recurrent state of euphoria, anger, anxiety, fear, panic, depression, hopelessness or despair, helplessness, apathy or indifference, that is inappropriate in degree to the individual's circumstances. (b) A deficit in the mental functions listed above may be considered only if the deficit, by itself or in combination with one or more other mental function deficits, significantly impairs the person's ability to understand and appreciate the consequences of his or her actions with regard to the type of act or decision in question. (c) In determining whether a person suffers from a deficit in mental function so substantial that the person lacks the capacity to do a certain act, the court may take into consideration the frequency, severity, and duration of periods of impairment. (d) The mere diagnosis of a mental or physical disorder shall not be sufficient in and of itself to support a determination that a person is of unsound mind or lacks the capacity to do a certain act. (e) This part applies only to the evidence that is presented to, and the findings that are made by, a court determining the capacity of a person to do a certain act or make a decision, including, but not limited to, making medical decisions. Nothing in this part shall affect the decisionmaking process set forth in Section 1418.8 of the Health and Safety Code, nor increase or decrease the burdens of documentation on, or potential liability of, health care providers who, outside the judicial context, determine the capacity of patients to make a medical decision. If the person does not meet these tests, then the proper procedure is to get a Court order for a Conservator of the Estate.
Answer Applies to: California