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How can we get a POA for someone with dementia?

My parents hid Mom's memory problems and dementia from us for a couple of years, now dad has died. Nobody has a power of attorney and we believe she is not mentally competent enough for the court to allow her to sign one. Now what?
Status: Open    Jan 09, 2016 - 06:54 AM

Elder Law, Dementia

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4 answers

Expert Answers

Jan 12, 2016 - 01:07 PM

If she is not mentally competent, then your only option is to apply for guardianship in order to make decisions for her.

Jan 13, 2016 - 02:14 PM

Persons with dementia cannot sign legal documents, such as a poa. Usually persons will need to get a guardianship through their county court if a person needs something like this and has dementia.

Jan 13, 2016 - 02:17 PM

You are unable to get a POA for someone who does not have the capacity to sign one. It sounds like she might not have the requisite capacity. If not, then your only option is to get what could be considered a court created POA, which is a guardianship and/or conservatorship. This process requires a court proceeding and assistance from a probate attorney in your area.



Feb 08, 2016 - 06:26 PM

Just thought I'd add my experience in this area if only to help you be prepared, anticipate and avoid some of our pitfalls. Because although others will tell you 'get a guardianship' and that sounds straight forward, it may not be. We knew so little.
After trying to get my 78yo mom to 'understand' at some level that she had alzheimer's and was not safe living alone we finally had to get an attorney to help us get a court ordered guardianship assigned to her then to get her declared incapacitated so the guardian could handle her finances and medical. It took us 2 long years to accomplish this. Keep in mind when we first contacted our attorney we were already very concerned about her being alone. Then add two more years of her declining mental capacity to make good decisions from controling her finances/bills, driving, completing household chores, shop for food etc etc. Not to mention the increasing paranoia and hallucinations. That was a most stressful scary 2 years! The one thing she excelled at her whole life and which continued to mask her dementia was her grasp on language. This alone was so confounding to us because she 'sounded normal' to any one she talked to briefly and believe me almost every interaction with those who we called on to get help from only have time for a brief meeting. My mom was so unaware of her condition that she fought us on everything.
First of all we called our local Adult Protective Services and they offered to visit her to see if they could convince her to accept some help. She wouldn't let them. They did get us started in the right direction for guardianship though. There is a good amount of paperwork and allot more shuffling papers from atty (attorney) to atty (yes, she had to be legally notified and get her own atty or have one assigned to her) then to court clerks, judge etc etc. I recommend you interview several attorneys! Don't be shy asking quesitons about all possible costs including their hourly fee's. Be honest about her condition so they might 'guestimate' total costs to get to the end goal. The considerate ones will take a guess. We found an atty that specialized in seniors with dementia. Huge plus because she knew the system was slow and reluctant to declare the incapacity. In our case we were eligible to be re-imbursed by mom's estate for all our atty costs. I worried about how mom would feel when hearing others in the court discuss her 'mental capacity' but everyone in the court was thoughtful and I don't believe we even heard those words but once or twice ever.
Make note - do stay on top of the guardian(s) until you know them pretty well. We were super fortunate to get assigned a very good man. However, he drags his feet with papework. We don't quite see eye to eye on how and what things are helpful to say to mom about her condition either and we discussed this allot. A good guardian will be patient with you too and is required to take your concerns into consideration. Keep in mind they also will charge you/your mom for every conversation. All guardians also have an attorney that represent THEM. Ask what the procedures and paperwork needed are up front and check to be sure they are following through in a timely manner for the courts! Then of course try to keep an eye on how much time he is charging. If you have legitimate concerns there should be a committee over-seeing all guardians in your city where you can file complaints. Sadly mom hired her own attorneys to fight us. In fact she went through 3 attorneys because they all figured out she really needed a guardian. Even so there was one attorney that after appearing with her at the first court date and saying all of 1 sentence to the court "______ does not wish to have a full guardianship at this time" as was his due dilligence, still he managed to charge her upwards of $4,000. He eventually threatened her with harrassment to get her to stop calling him. In the end mom's attorneys cost 3 times more than did our attorney. She had no concept of money but she did have a small savings ($30k) and I suspect her attorneys figured this out in short order. The final attorney was a good person and while acting in her best interest even encouraged her to cooperate with us.
After the initial court proceeding to assign an interim guardian, our first official court appearance was to ask for 'estate only' guardianship - that was recommended because the court never grants full guardianship right away. It was granted. Now we knew bills would be paid and mom would be given an allowance of sorts. This was great because she was literally losing money left and right and giving it away too! Keep in mind the guardian is very expensive too.
Second appearance was to ask for full guardianship for which we felt very prepared with allot of personal and professional evidence. I had been journaling mom's behaviors for 2+ years, Police & Fire had responded to multiple false calls & searches for lost food, money, insulation (yes insulation) and she'd finally received a letter to stop driving. It took her a while but at least she finally did stop driving. Then to our horror the court still insisted on another delay of 4 months and more guardian visits to verify her mental state & another Dr. assessment.
Finally the third time full guardianship granted! There was not a big change with this success. You see courts won’t let you make anyone move or accept care even if they’ve been declared incompetent and have a court approved Guardian. I t did give us leave to convince her to move to the memory home where even if she wanted to leave they're job is to use distraction tactics and it's a locked facility anyway. She actually really liked it and wanted to leave at the same time. She likes it because she was so much more entertained than before. She still wants to leave semi-regularly even though she's not sure why or to where.

Hopefully you'll find this helpful. Best Wishes for a speedy process.

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