Legal Issues when someone has Dementia – Preparing Power of Attorney for Health Care

This week’s blog continues the discussion of Legal Issues when someone has Dementia.  The introductory installment (April 30, 2015) put forth the issue of “Who can speak for someone with dementia?”  The May 14, 2015 installment discussed the situation where the person with dementia has Advance Directives in place.  The May 21, 2015 installment discussed the legal issues in determining whether a dementia sufferer can choose to have new Advance Directives prepared.

For people whose dementia hasn’t yet taken away their ability to make decisions about Advance Directives, the next questions are which Advance Directives to prepare and how to prepare them.

Before we get confused, let’s set out our terminology.

Before the dementia takes away the principal’s ability to make decisions, the principal’s support (family, friends, social workers, etc.) should encourage him or her to prepare and execute (fancy legal word for signing one’s name) a Power of Attorney for Health Care.  (The Power of Attorney for Health Care is often called something different in states other than Ohio, where I practice.  I often hear the terms Health Care Surrogate or Health Care Proxy.  I am not an expert on the law in other states, I think all of these terms mean roughly the same thing.)The Power of Attorney for Health Care is, as the name implies, a document appointing an agent to make decisions about the principal’s health care.  (I’ll try to call the document a Health Care POA for the rest of this discussion because, frankly, “Power of Attorney for Health Care” sounds stuffy.)

The Health Care POA is about the skin and contents.  (Thanks to Dan Keenan, a friend of mine who brokers health and disability insurance, for the description of “skin and contents.”)  In my opinion, the Health Care POA is the most important of the advance directives.  No matter whether the principal is rich or is poor, he or she has his or her health.  The principal may be in good health or in poor health, but the decisions about his or her health are very important.

Because the principal’s health is important, he or she must choose an agent carefully.  Because the principal (in this discussion, at least) already has dementia, the best choice for health care agent (in my opinion) is the principal’s family member who is acting as caregiver or as care “quarterback.”  (If the principal doesn’t need hands-on care on a daily basis, there is no caregiver, but, because of the dementia, a family member probably tags along on doctor visits and maybe helps manage medicine.  That person is the care “quarterback.”  If the principal does need hands-on care on a daily or frequent basis, but someone other than a family member is providing the hands-on care, the family member most involved with the caregiver is the care “quarterback.”)

The health care agent should be the person who is most involved in the principal’s care and, at the same time, emotionally connected to the principal.  Someone connected to the principal’s care but not connected emotionally is more likely to make appropriate clinical decisions but is not likely to be able to make the decisions in a way that the principal himself or herself would have made.  Someone connected to the principal in an emotional way but not involved in the principal’s care would probably have the necessary empathy to make the decisions like the principal would make them, but would lack the necessary information and experience to understand the principal’s health situation.  (Note:  The hands-on caregiver is far more likely to be a woman than a man.  The care “quarterback” is also more likely to be a woman than a man, but it’s somewhat closer to even than for hands-on caregivers.)

If the principal isn’t yet receiving care (because the dementia isn’t yet that bad,) I suggest that the principal name his or her spouse as the agent, if the spouse is still able to make the necessary decisions.  If there is no spouse, or if the spouse is unable to make these important decisions, the principal should name as agent the child most likely to become caregiver or care “quarterback.”

The principal should also name successor agents.  The first-named agent might become unavailable through illness, relocation, or (sadly) death.  The successor agents should be the children in order of their likelihood of becoming caregiver or care “quarterback.”

Also, I do not suggest naming more than one agent at a time.  One person can reach a decision.  Two or more people are far more likely to reach an impasse.  In the event of an impasse, no care decisions are made until the health care need reaches crisis level.  (Successor agents still comply with my “one at a time” suggestion.  A successor takes over if the agent appointed before them is not able to serve.)

Not everyone agrees with my suggestion to name one’s likely caregiver as agent in the Health Care POA.  For example, , suggests that the principal should name as agent the person most likely to follow through on the principal’s express wishes.  (I learned Judge Stormer’s position on whom to appoint when she and I spoke on this topic at a public outreach event for  in October 2013.)  Most notably in the context of a dementia sufferer, those wishes might include never going to a nursing home.  Holding someone to the promise that the principal will never be moved into a nursing home is incredibly difficult.  It may seem an easy promise to keep before dementia gets too bad.  As the disease progresses, or as other afflictions appear, that promise can become an overwhelming burden for the agent/caregiver.  I greatly respect Judge Stormer, but I disagree with her on this suggestion.

Finally, a Health Care POA gives an agent the power to make health care decisions for the principal.  It does not take away the principal’s ability to make decisions for himself or herself.  The agent is the principal’s backup, not the principal’s replacement.  The health care professionals involved in a certain may determine that the principal is not so far out of touch with himself or herself that his or her wishes should be ignored.

The principal’s disagreement with the agent’s decision can put the health care professional in a difficult situation.  By the nature of the Health Care POA, everything over which the Health Care agent has authority involves, at some point, the principal’s body.  That means that the principal is present when the agent’s instructions are carried out.  Unless unconscious, the principal has the ability to resist the agent’s wishes.  That resistance can be as simple as saying “no” or as violent as biting, hitting, and kicking.  Just because the Health Care agent orders something for the principal doesn’t necessarily mean that it will be carried out.

To sum up for this week, if a person with mild dementia is still able to make decisions about who can make his or her health care decisions, then

(Sorry that I didn’t get this out on Thursday night as I’ve done in the past.  It’s been a crazy few weeks.)

Legal Issues when someone has Dementia – Can Advance Directives be done?

This week’s blog continues the discussion of Legal Issues when someone has Dementia.  The introductory installment (April 30, 2015) put forth the issue of “Who can speak for someone with dementia?”  The May 14, 2015 installment discussed the situation where the person with dementia has Advance Directives in place.

In this discussion, “Advance Directives” means a General Power of Attorney and a Health Care Power of Attorney.  The purpose of such powers of attorney is to appoint someone to speak for us (to handle our affairs, so to speak) in our place.

This installment will discuss whether it might be appropriate to encourage someone who has dementia to sign Advance Directives.  (Such a decision is necessary only if the person who has dementia does not have Advance Directives in place or has Advance Directives that suffer from one or more of the problems discussed last week.)

The first question when considering whether Advance Directives can be done is to determine whether the person’s dementia prevents him or her from being legally able to make the decisions necessary to sign Advance Directives.  The decision-making ability necessary to choose to sign legal documents, such as Advance Directives, is called “legal capacity.”  Legal capacity is generally described as the ability to understand what one is doing and to understand the ramifications of the decision.  So, under the “legal capacity” test, if the person’s dementia is mild enough to allow him or her to still understand the legal results that can flow from Advance Directives, then the person has the necessary decision-making capacity to sign Advance Directives.

Unfortunately, the test for legal incompetence, a necessary test for guardianship (which will be the subject of a future installment) is not simply the lack of legal capacity.  In Ohio (where I practice,) a person is eligible for guardianship only if the person is so “mentally impaired [as to be] incapable of taking proper care of the person’s self or property.”  (Ohio Revised Code section 2111.01(D))

There is a wide gap (in my opinion) between ability to make decisions about Advance Directives and an inability to take care of one’s self and one’s property.  That gap is a “no man’s land” of who can make decisions for the person with dementia.

If dementia has taken away from someone the ability to understand the ramifications of Advance Directives, the dementia has probably also taken away the ability to understand the ramifications of health care decisions or money management decisions.  In other words, it’s “too late” to get Advance Directives but “too soon” to get a guardian.  Without an ability to get Advance Directives, prepared, the person with dementia may be the only person legally able to make decisions.  The decisions may not be “good,” but they come from the only person who can legally make a decision.

Legal Issues when someone has Dementia – Advance Directives are Done

This week’s blog continues the discussion of Legal Issues when someone has Dementia.  The introductory installment (April 30, 2015) put forth the issue of “Who can speak for someone with dementia?”  This week’s installment continues the discussion and addresses the situation where the person with dementia has Advance Directives in place.

In this discussion “Advance Directives” means a General Power of Attorney and a Health Care Power of Attorney.  Advance Directives might also include a Living Will and possibly a Do Not Resuscitate order.  The purpose of powers of attorney is to appoint someone to speak for us (to handle our affairs, so to speak) in our place.  If the person who now has dementia has Advance Directives, the question “Who can speak for that person?” should be resolved.  The Advance Directives provide the answer.

Before we go further, let’s set out our terminology.

If Advance Directives tell us who can make decisions for the person who now has dementia, isn’t the issue done?  These are legal issues, so of course the issue isn’t done.  There can be complications.

First, the agent appointed in the powers of attorney might have passed away or might now suffer from dementia.  If so, the principal has no agent or effectively has no agent.  The Advance Directives simply didn’t get updated to keep up with changed circumstances.  This is a frequent occurs when spouses appointed each other as agents in their respective powers of attorney but haven’t revisited the power of attorney documents in years.

Second, a dispute about the Advance Directives might arise.  Someone might claim that the agent exercised undue influence over the principal.  This is a claim that the principal would have appointed someone different as agent if it weren’t for the undue influence of the person actually named agent.  Such a claim implies that the agent has some improper motive to want to be agent.  If the power of attorney document is recent (recent enough to have been signed when the principal already suffered dementia,) undue influence could easily have occurred.  Claims of undue influence are usually brought by a family member who feels that he or she should have been named agent.

Third, someone might claim that the agent was named by mistake, implying that the principal meant to name someone else.  Using my family, for example, my Dad and his brothers (in birth order) are John, Joe, Jim, and Charlie.  If Joe were named as his mother’s agent, John could argue that it was a mistake because, as oldest, he was the logical choice to be agent.  The fact that both names start with the letters “jo” makes the claim of mistake more plausible.

Fourth, the principal may have named more than one agent.  (I do not mean a successor agent.)  If two or more agents were named, either in the same power of attorney document or in separate documents, the agents could disagree.  In the case of a disagreement, no decisions get made.

If the principal, who now suffers from dementia has previously appointed someone to act as agent through power of attorney documents, the principal planned ahead.  That’s great and it usually means that the person who can make decisions is easily identifiable.  In some instances, though, complications arise that make it hard to determine who is in charge.

Legal Issues when Someone has Dementia – Leave Instructions about your Long Term Care Planning

This week’s discussion is brief.  It doesn’t take much explanation.  It states what should be obvious, but many people still overlook these issues.

When you need long term care, you may not be in a position to tell your family about the setting that you prefer in which to receive care (, nursing home, assisted living, or in your home with a home care company.)  Likewise, you may not be in a position to explain to your family the strategy you adopted for dealing with long term care costs.  (If you’ve bought long term care insurance or set up a trust, for example, your family may not know.  In addition, you might qualify for VA benefits, but your family may not know where to find your discharge papers.)

Leave instructions, or talk over these issues with someone before hand.