Legal Issues when someone has Dementia – Who can Speak for a Person with Dementia?

People with dementia have trouble or the complete inability (if the dementia is bad enough) to make decisions about their health care and about their assets.  The dementia causes a disconnection with the world and/or an inability to communicate that prevents the sufferers from understanding the need to make decisions about health care or about assets or from communicating those decisions to the people who must act on the decisions.  Often, it becomes necessary for someone else to make the decisions and make those decisions known.

Perhaps the person with dementia has previously prepared a General Power of Attorney (often called a Durable Power of Attorney) and/or a Health Care Power of Attorney.  If so, then the determination of who can speak for the person is easy.  The Agent(s) appointed in those documents have the decision-making authority.

Perhaps the person with dementia has not prepared a General Power of Attorney or a Health Care Power of Attorney.  In that case, the determining who can make decisions for the dementia sufferer is much trickier.  There is rarely a clear cut answer.

For people trying to provide care for the dementia sufferer, the worst case scenario might be a sibling rivalry among the children.  That rivalry might appear outwardly as unresolvable conflict.  (I’ve written about such sibling disputes in my blog of January 31, 2014 (“Family is the other F word”) and February 7, 2014 (“When did Fredo die?” using a story line from “The Godfather Part 2” as an example) because they arise all too often.)

If there is such a sibling rivalry, the dementia sufferer’s caregivers are caught on the horns of a dilemma.  There is no one person in charge, so the caregivers have to figure out how to get decisions made.  At the same time, because of the rivalry among the children, there are likely to be repercussions no matter what decision is made and what action (or inaction) taken.

Future installments will discuss these issues in more detail.

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