Legal Issues when someone has Dementia – Make General Power of Attorney “Durable”

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.  To continue the discussion of which Advance Directives to prepare and how to prepare them, today’s installment will discuss the importance of making the General Power of Attorney “durable.”

As we have in prior blog installments, let’s first set our terminology (just in case you’ve found this installment first.)

One of the biggest choices to make when preparing a General Power of Attorney (after deciding whom to choose as agent,) is the decision whether to make the POA durable or non-durable.  A non-durable power of attorney loses its effect when the principal loses his or her ability to make decisions.  A durable power of attorney continues in force even if the principal can no longer make his or her decisions.  Because we are discussing the legal issues when someone already has dementia, the principal should choose to .  With someone who already has dementia, our concern is who can help the principal handle his or her affairs as the dementia worsens.

One might wonder why anyone would ever have a non-durable power of attorney.  There are a few reasons:

No matter the reason that someone might have set up a non-durable general Power of Attorney in the past, someone with dementia who is still able to enter into a POA should enter into a POA before the dementia worsens.

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