Legal Issues when someone has Dementia – DON’T Make General Power of Attorney “Springing”

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.  The May 30, 2015 installment discussed options in preparing a Health Care Power of Attorney.  The June 4, 2015 installment discussed how to decide whether to prepare a Living Will.  The June 11, 2015 installment discussed some of the basic issues in preparing a General Power of Attorney.  The June 18 installment discussed the importance of making the General Power of Attorney “durable.”  To continue the discussion of which Advance Directives to prepare and how to prepare them, today’s installment will discuss whether to make General Powers of Attorney “springing.”

A “springing” General Power of Attorney does not give any authority to the agent until the principal lacks the capacity to make his or her own decisions.  Another way to describe “springing” is that the POA is dormant until the principal has a significant cognitive impairment or is unconscious.  Within the parameters of this ongoing series about legal issues when someone has dementia, a “springing” Power of Attorney would not take effect until the principal’s dementia gets so bad that the principal no longer has the ability to make his or her own decisions because his or her mental connection to the world has been broken.

The determination whether the principal is still able to make his or her own decisions is usually required (1) from the principal’s doctor, or (2) from the principal’s doctor with a confirming second opinion from a separate doctor, or (3) from two independent doctors.  The medical determination(s) need to be memorialized in a letter made available to the principal and the appointed agent (and perhaps to the principal’s other family members.)

In the abstract, a “springing” POA seems to make a great deal of sense.  The principal has a General POA drawn up in order to be prepared for a time when he or she can’t make good decisions any longer, so there is no need to give actual power to the agent until that unfortunate time arrives.  “There’s no sense taking the risk that the agent ‘messes with my stuff’ while I can still manage it myself,” a would-be principal might think.  Sorry to say, though, but the implementation of a “springing” Power of Attorney often isn’t as clean as it would seem in the abstract.

First, doctors try to avoid writing letters explaining that a patient (even a patient that is just seeking a second opinion) is not able to handle his or her own affairs.  The doctor knows that the letter could lead to litigation and that the doctor could be forced to testify.  Litigation is a time-sink, so doctors (who usually get paid based on the number of people that they see) try to avoid getting entangled in litigation.  Litigation also can be emotionally charged, with someone (maybe everyone) left unsatisfied at the end.

In addition, doctors try to live in the world of diagnosis and treatment.  An inability to make decisions isn’t a treatable disease.  The dementia might be treatable (more for management than for cure with our current medical knowledge,) but an inability to make decisions is not medically treatable.  It is a legal judgment, not a medical judgment.  (We all know people who have no dementia but have little ability to make decisions, don’t we?)

Second, if the principal’s family doesn’t get along, the issue whether a springing Power of Attorney has “sprung” is a source for an argument and possibly for litigation, if the family discontent is harsh enough.  Usually such disputes are between the children of the principal and a second spouse/step-parent (à la the Casey Kasem saga) or among the children themselves.  Often, when there is bad blood within the family, any issue that can be argued will be argued.  (Within a family, arguments often aren’t really about money or about Mom or Dad’s care.  Arguments often are really about hurt feelings, sometimes decades old hurt feelings.  For this reason, family disputes can look like ugly divorces.)  Even if two doctors will testify that the principal’s dementia has taken away the capacity to make decisions, the unhappy family members can probably find a doctor or two who will testify that the principal still has decision-making capacity.  The principal would be caught in no-man’s land between the warring factions of his or her family.

Because, in this series, we are discussing a principal who already has dementia (but, at this point in our series, the principal doesn’t have advanced dementia yet,) a “springing” Power of Attorney is not an appropriate choice.  Even if the spring hasn’t yet sprung, it probably won’t be long, so why take the chance on a dispute?

In my opinion, a “springing” Power of Attorney is rarely a good choice, whether or not the principal has dementia.  Because doctor’s have disincentives to opine on the principal’s decision-making ability and because the spring itself can be a source of dispute in the principal’s family, I suggest that principal’s use an “immediate” Power of Attorney rather than a “springing” one.

If the principal doesn’t trust his or her agent, the principal should not have appointed that agent.  If the principal won’t trust any agent, then the principal should not execute a POA at all.  The principal has a choice between worrying about the agent that (in the principal’s mind) is using the POA to steal from the principal and worrying about having someone ready to make decisions if, at some point in the future, the principal can’t make decisions.

Each one of us has a different level of concern about being financially abused and about failing to get necessary long term care.  As a result of those different worries, each of us has a different way of looking at the choice to prepare a General Power of Attorney.  One size definitely does not fit all.

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