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.

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