Who can get and how do you go about getting a "Power of Attorney" for someone with dementia? 37 Answers as of May 17, 2013

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Law Office of Pamela Braynon | Pamela Y. Braynon
You should see an attorney familiar with estate planning
Answer Applies to: Florida
Replied: 5/17/2013
Law Offices of George H. Shers | George H. Shers
You can not as the person lacks the necessary mental facilities to grant a power of attorney.
Answer Applies to: California
Replied: 5/17/2013
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
Replied: 5/17/2013
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
Replied: 5/17/2013
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
Replied: 5/17/2013
    James T. Weiner & Associates, P.C.
    James T. Weiner & Associates, P.C. | James T. Weiner
    You DONT. You file a petition for guardianship with the local probate court and you get appointed a guardian which gives you the same powers.
    Answer Applies to: Michigan
    Replied: 5/17/2013
    Shimberg and Crohn, P.C. | Jonathan Shimberg
    If they have dementia, you can't, You would need to seek a guardianship. If they have been diagnosed with dementia, then any power you might get them to sign it questionable.
    Answer Applies to: Illinois
    Replied: 5/17/2013
    Law Office Of Victor Waid
    Law Office Of Victor Waid | Victor Waid
    You don't. The person who has the power, can no longer exercise the power, as there is a failure of understanding (dementia) the legal effect and nature of the power and would not know what they are signing.
    Answer Applies to: California
    Replied: 5/17/2013
    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
    Replied: 5/17/2013
    Charles M. Schiff, Attorney at Law
    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
    Replied: 5/17/2013
    Law Offices of R. Christine Brown | R. Christine Brown
    You cannot get a power of attorney for someone with dementia who does not understand what a power of attorney is. You may need to get a conservatorship over the person.
    Answer Applies to: California
    Replied: 5/17/2013
    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
    Replied: 5/17/2013
    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
    Replied: 5/17/2013
    Stephens Gourley & Bywater | David A. Stephens
    You probably cannot get a power of attorney for someone with dementia because they are not competent to sign one. You will probably need a guardianship.
    Answer Applies to: Nevada
    Replied: 5/17/2013
    Goldsmith & Guymon
    Goldsmith & Guymon | Dara Goldsmith
    You probably cannot unless their doctor determines that he or she possesses the requisite legal capacity to make a power of attorney. That being said you probably need to file for legal guardianship through the court.
    Answer Applies to: Nevada
    Replied: 5/17/2013
    THE BROOME LAW FIRM, LLC
    THE BROOME LAW FIRM, LLC | Barry D. Broome
    It may be too late. You must have a doctor sign off on the mental capacity of the person at the time of signing.
    Answer Applies to: Georgia
    Replied: 5/17/2013
    Reger Rizzo & Darnall LLP | Kathleen DeLacy
    You can't. You must petition Court for a guardianship now.
    Answer Applies to: Delaware
    Replied: 5/17/2013
    James Oberholtzer, Attorney at Law
    James Oberholtzer, Attorney at Law | James Oberholtzer
    You cannot do it. A person has to have legal capacity to create a power of attorney.
    Answer Applies to: Oregon
    Replied: 5/16/2013
    Minor, Bandonis and Haggerty, P.C.
    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
    Replied: 5/16/2013
    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
    Replied: 5/16/2013
    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
    Replied: 5/16/2013
    Dennis E. Valentine Law Firm
    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
    Replied: 5/16/2013
    WARM SPRINGS LAW GROUP | Elliott D. Yug
    In Nevada you can't. The person who is giving the Power of Attorney has to be of sound mind. A person who has dementia is not of sound mind. Your best course of action is to get a guardianship from the courts.
    Answer Applies to: Nevada
    Replied: 5/16/2013
    Attorney At Law | James G. Maguire
    It depends on the extent of the dementia. A person has to be mentally competent enough to understand what he/she is doing by signing a POA.
    Answer Applies to: Louisiana
    Replied: 5/16/2013
    Law Offices of Phillip Day
    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
    Replied: 5/16/2013
    Mathieu & Ranum, PLLC | Carla Ranum
    An incapacitated person cannot execute a power of attorney. You would need to go to court and have a conservator and guardian appointed.
    Answer Applies to: Idaho
    Replied: 5/16/2013
    Kokish & Goldmanis, P.C.
    Kokish & Goldmanis, P.C. | Bernard H. Greenberg
    If the person lacks capacity they cannot sign a Power of Attorney. Your option in that event, is to ask the Court to appoint a Guardian and Conservator.
    Answer Applies to: Colorado
    Replied: 5/16/2013
    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
    Replied: 5/16/2013
    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
    Replied: 5/16/2013
    Sebby Law Office
    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
    Replied: 5/16/2013
    Durham Jones & Pinegar | Erven Nelson
    You cannot do that In Nevada if the person is legally incompetent. You could, however, be appointed by a court as a guardian. A good Elder Law attorney can handle that for you.
    Answer Applies to: Nevada
    Replied: 5/16/2013
    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
    Replied: 5/16/2013
    Mains Law Office
    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
    Replied: 5/16/2013
    Ben T. Liu Law Office
    Ben T. Liu Law Office | Ben T. Liu
    If the person does not have mental capacity now, he or she cannot do a new power of attorney.
    Answer Applies to: Michigan
    Replied: 5/16/2013
    Law Offices of Terrell Monks
    Law Offices of Terrell Monks | Terrell Monks
    If the dementia has progressed to the point that the patient is not competent to handle her own affairs, a guardianship may be possible, but it is too late for her to execute a valid power of attorney.
    Answer Applies to: Oklahoma
    Replied: 5/16/2013
    James Law Group
    James Law Group | Christine James
    No one can get a power of attorney for someone without capacity. The only option is to go to court and get a conservatorship.
    Answer Applies to: California
    Replied: 5/16/2013
    Peters Law, PLLC
    Peters Law, PLLC | Mark T. Peters, Sr.
    Once they have dementia, you cannot get a power of attorney. You now have to go to court and be appointed the guardian and conservator for the person.
    Answer Applies to: Idaho
    Replied: 5/16/2013
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