Month: June 2015

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.  The June 18 installment discussed the importance of making the General Power of Attorney “durable.”  To continue the discussion of which Advance Directives to prepare and how to prepare them, today’s installment will discuss whether to make General Powers of Attorney “springing.”

A “springing” General Power of Attorney does not give any authority to the agent until the principal lacks the capacity to make his or her own decisions.  Another way to describe “springing” is that the POA is dormant until the principal has a significant cognitive impairment or is unconscious.  Within the parameters of this ongoing series about legal issues when someone has dementia, a “springing” Power of Attorney would not take effect until the principal’s dementia gets so bad that the principal no longer has the ability to make his or her own decisions because his or her mental connection to the world has been broken.

The determination whether the principal is still able to make his or her own decisions is usually required (1) from the principal’s doctor, or (2) from the principal’s doctor with a confirming second opinion from a separate doctor, or (3) from two independent doctors.  The medical determination(s) need to be memorialized in a letter made available to the principal and the appointed agent (and perhaps to the principal’s other family members.)

In the abstract, a “springing” POA seems to make a great deal of sense.  The principal has a General POA drawn up in order to be prepared for a time when he or she can’t make good decisions any longer, so there is no need to give actual power to the agent until that unfortunate time arrives.  “There’s no sense taking the risk that the agent ‘messes with my stuff’ while I can still manage it myself,” a would-be principal might think.  Sorry to say, though, but the implementation of a “springing” Power of Attorney often isn’t as clean as it would seem in the abstract.

First, doctors try to avoid writing letters explaining that a patient (even a patient that is just seeking a second opinion) is not able to handle his or her own affairs.  The doctor knows that the letter could lead to litigation and that the doctor could be forced to testify.  Litigation is a time-sink, so doctors (who usually get paid based on the number of people that they see) try to avoid getting entangled in litigation.  Litigation also can be emotionally charged, with someone (maybe everyone) left unsatisfied at the end.

In addition, doctors try to live in the world of diagnosis and treatment.  An inability to make decisions isn’t a treatable disease.  The dementia might be treatable (more for management than for cure with our current medical knowledge,) but an inability to make decisions is not medically treatable.  It is a legal judgment, not a medical judgment.  (We all know people who have no dementia but have little ability to make decisions, don’t we?)

Second, if the principal’s family doesn’t get along, the issue whether a springing Power of Attorney has “sprung” is a source for an argument and possibly for litigation, if the family discontent is harsh enough.  Usually such disputes are between the children of the principal and a second spouse/step-parent (à la the Casey Kasem saga) or among the children themselves.  Often, when there is bad blood within the family, any issue that can be argued will be argued.  (Within a family, arguments often aren’t really about money or about Mom or Dad’s care.  Arguments often are really about hurt feelings, sometimes decades old hurt feelings.  For this reason, family disputes can look like ugly divorces.)  Even if two doctors will testify that the principal’s dementia has taken away the capacity to make decisions, the unhappy family members can probably find a doctor or two who will testify that the principal still has decision-making capacity.  The principal would be caught in no-man’s land between the warring factions of his or her family.

Because, in this series, we are discussing a principal who already has dementia (but, at this point in our series, the principal doesn’t have advanced dementia yet,) a “springing” Power of Attorney is not an appropriate choice.  Even if the spring hasn’t yet sprung, it probably won’t be long, so why take the chance on a dispute?

In my opinion, a “springing” Power of Attorney is rarely a good choice, whether or not the principal has dementia.  Because doctor’s have disincentives to opine on the principal’s decision-making ability and because the spring itself can be a source of dispute in the principal’s family, I suggest that principal’s use an “immediate” Power of Attorney rather than a “springing” one.

If the principal doesn’t trust his or her agent, the principal should not have appointed that agent.  If the principal won’t trust any agent, then the principal should not execute a POA at all.  The principal has a choice between worrying about the agent that (in the principal’s mind) is using the POA to steal from the principal and worrying about having someone ready to make decisions if, at some point in the future, the principal can’t make decisions.

Each one of us has a different level of concern about being financially abused and about failing to get necessary long term care.  As a result of those different worries, each of us has a different way of looking at the choice to prepare a General Power of Attorney.  One size definitely does not fit all.

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.

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.