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Take Into Consideration: POA and Legal Matters

There are many legal matters you must attend to before you or another person can be an effective caregiver/care partner. Two of the most important ones are becoming your loved one’s Power of Attorney (POA) and, when warranted, his or her guardian and conservator. In addition, your loved one should have already composed and signed his or her advance directive, do not resuscitate (DNR) instructions, and his or her will.

Competency is one of those hard-to-define words. Most people realize that competency has something to do with understanding information and performing tasks to an acceptable level. But what about competency as it applies to people who have dementia? To evaluate competency, healthcare professionals and lawyers consider the specific skills or tasks the patient needs to perform.

A power of attorney is a legal document that states your loved one voluntarily gives you the right to act on his or her behalf. Since only competent individuals can grant power of attorney, it is vital to have a POA in place well before the need arises. People with early-stage dementia often do have the capacity to make decisions and, therefore, can sign the power of attorney papers.

If you are the designated POA, you can converse with your loved one’s doctor and other healthcare providers. Without POA papers, you cannot pay your loved one’s bills, make banking transactions, sign income tax returns, or speak with credit card, insurance, and cellphone representatives.

Guardian and conservatorship are necessary when your loved one has neither been assigned as his or her POA nor is competent to do so. Guardians are responsible for their loved one’s safety, food, clothing, and shelter. Conservators are responsible for paying bills and managing and protecting property and financial assets. Most often, the person who is the guardian is also the conservator.

The guardian and conservatorship process is expensive, lengthy, and emotionally draining. Becoming your loved one’s guardian or conservator requires the services of several lawyers, a court petition, and a court hearing.

An advance directive or living will, is a document that outlines your loved one’s end-of-life wishes in the event he or she becomes mentally or physically incapacitated. The advance directive states the conditions where he or she may or may not want tube feeding, cardiopulmonary resuscitation (CPR), or other artificial life-sustaining measures. Your loved one can appoint you or another person, to make these end-of-life decisions. In case of a heart attack, stroke, pneumonia, or another life-threatening condition, resuscitation instructions are another aspect of the advance directive. A DNR is the abbreviation many people use instead of stating “do not resuscitate.” Often, doctors, hospitals, and long-term care facilities will not admit or treat patients who do not have a living will on file. Then, you, as his or her POA or guardian, must make those difficult decisions.

Writing and modifying the will is another topic that involves competency. Suspicions of coercion can pit family members against one another.

As with all essential documents – keep records, make copies to use when an original is unnecessary, AND inform need-to-know individuals where and how to access these critical papers.

To find an attorney specializing in elder law, consider this organization, the National Academy of Elder Law Attorneys and their "Find a Lawyer" directory or our Dementia Answers Directory.

Contributor: Janet Yagoda Shagam, PhD, is a freelance medical and science writer and the author of “An Unintended Journey: A Caregiver's Guide to Dementia.”Available through Amazon.

Contributing authors' opinions are not necessarily those of the Dementia Society, Inc. We do not endorse nor guarantee products, comments, suggestions, links, or other forms of the content contained within blog posts that have been provided to us with permission, paid or otherwise. Dementia Society does not provide medical advice. Please consult your doctor.

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