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.

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