Legal Issues when someone has Dementia – Preparing a General Power of Attorney

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

Before the dementia takes away the person’s ability to make decisions, his or her support (family, friends, social workers, etc.) should encourage him or her to consider whether to prepare and execute a Living Will.  (As I mentioned in a prior post, “execute” is a fancy legal word for signing one’s name on something official.)

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 an official document) a General Power of Attorney.

A General Power of Attorney is a complement to the Health Care Power of Attorney (discussed in the May 30, 2015 installment.)  The Health Care Power of Attorney is about the principal’s skin and contents (, about his or her health.)  The General Power of Attorney is about everything else.  The General POA is about bank accounts, real estate, investments, personal possessions, legal claims and litigation, and many other things in the principal’s control.  While a Health Care Power of Attorney is about the principal’s body, the General Power of Attorney is about the principal’s stuff, anything that the principal owns or over which the principal has control.

The principal should execute a General Power of Attorney before his or her dementia takes away the ability to understand the importance and the impact of the General POA.  The General POA is important to the principal who is in the early stages of dementia because the principal may need someone to help pay the bills for the principal’s care as the dementia gets worse.

I believe that, for a principal that is already suffering from dementia, the agent named in the General POA should be the same person who is named agent in the Health Care POA.  As I discussed with the Health Care POA in the May 30, 2015 installment, the 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 wise 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 financial situation and how that financial situation impacts the principal’s health care.

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 decisions are made until the 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 General POA.  For example, fellow elder law attorney , strongly believes that the agent in the General Power of Attorney must be the spouse or the child with the backbone to stand up to pressure from the other children to manage the parent/principal’s money in a way that benefits the children.  (Sometimes the principal’s adult children want the lowest possible amount of money spent on the parent/principal’s care so that the largest inheritance is preserved for the children.  Marta’s position is that the agent in the general POA needs to be strong enough to use the parent’s assets for the parent’s benefit.)  (I know Marta’s thoughts on this question from a discussion that we had during the question and answer time at the end of a presentation that I made to the Portage County (Ohio) Senior Services Network in April 2015.)  I agree with Marta’s concern about pressure from the other children, but I believe that the caregiver or care “quarterback,” because of his or her close involvement in the parent/principal’s care, is most likely to withstand pressure from the siblings.

Finally, a General POA gives an agent the power to make decisions (most often financial decisions) for the principal.  The General POA appoints the agent as the principal’s backup, not the principal’s replacement.  The General POA does not take away the principal’s ability to make decisions for himself or herself.

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