A woman called our office recently for an elder law consultation regarding her husband. Her husband had been diagnosed with dementia some time ago, but with her assistance he was able to remain living at home. However, she did become the sole manager of the finances and typical day-to-day decision making. Unfortunately, his condition declined significantly in a very short period of time. He became verbally and physically aggressive toward her and was sent to a local facility under the Baker Act. The woman had decided to call my office because she could no longer facilitate his needs and needed to admit him to a memory care facility that could. However, she had no authority to do so without his agreement and cooperation, which could be difficult to obtain given his condition.
This would be a non-issue if her husband had a Durable Power of Attorney naming her to act for him with regard to legal and financial decision making.
I explained to her that if her husband still had capacity to sign legal documents, he may be able to execute a Durable Power of Attorney now, but it sounded like that was not a possibility at this point in his disease. The only other option was for her to seek a guardianship over him. Guardianships are a drastic, but sometimes necessary legal process. Guardianships are implemented if a judge determines that an individual no longer has the cognitive capacity to manage their own affairs and a guardian must be appointed to take over.
There are several major disadvantages of a guardianship. For example, it removes the constitutional rights of the incapacitated person, the process takes time, and there can be significant legal fees. For these reasons, it is highly recommended that all individuals execute advanced directives, such as a Durable Power of Attorney and Designation of Healthcare Surrogate as an alternative to guardianship. These documents allow the incapacitated person the dignity of retaining their constitutional rights, can be executed quickly, and cost considerably less money than a guardianship.
Benjamin Franklin once said, “If you fail to plan, you are planning to fail.” In order for a Durable Power of Attorney to serve as an alternative to guardianship, it must be put into place while you have capacity to sign legal documents. This requires some planning, and should not be put off.
Who needs a Durable Power of Attorney? In my opinion, everyone who is of legal age, whether they are younger or older, healthy or unhealthy. However, if you have had a recent diagnosis of dementia or dementia related disease, it is essential that you get a Durable Power of Attorney and other advanced directive in place right away.
There are disadvantages to having a Durable Power of Attorney, so make sure to meet with an elder law attorney to discuss the pros and cons. If you would like to set up a consultation with our office, call 941-548-7883.