My mother has dementia but is still lucid. Is it too late for her to designate me as her Power of Attorney?

Question:  My mother has dementia but is still lucid. Is it too late for her to designate me as her Power of Attorney?

Answer:  Not necessarily.  The issue of whether an individual has the capacity to execute a document, whether it is a contract, a Last Will or Durable Powers of Attorney is a legal issue not a medical issue.  Proper execution of a legal instrument requires that the person signing have sufficient mental “capacity” to understand the implications of the document. While most people speak of legal “capacity” or “competence” as a rigid black line–either the person has it or doesn’t–in fact it can be quite variable depending on the person’s abilities and the function for which capacity is required.

In addition it is also important to understand that there are different standards for capacity for different matters.  A greater understanding is required for some legal activities than for others; for instance, the capacity required for entering into a contract is higher than that required to execute a will.  Each State has slight variances in the exact requirements, but in every State the law lays out certain factors to examine to determine if an individual has the capacity to do certain things. 

The law presumes individuals to be competent. In my State, a person has sufficient mental capacity to make a will if, at the time he executes the document he has:(1) The ability to know the nature and extent of his property;(2) The ability to know the natural objects of his bounty; and (3) The ability to make a disposition of his property in accordance with some plan formed in his mind.

The standards for entering into a contract are different because the individual must know not only the nature of her property and the person with whom she is dealing, but also the broader context of the market in which she is agreeing to buy or sell services or property. Contractual capacity requires the ability to comprehend the nature and quality of the transaction, together with an understanding of what is “going on,” but an ability to comprehend the nature and quality of the transaction, together with an understanding of its significance and consequences.

In your case the issue is whether your mother has the capacity to execute a Durable Power of Attorney. While some States set forth specific standards in regard to capacity to execute Durable Power of Attorney, unfortunately other States such as mine have no defined standards.  Most States which do have defined standards tend to use the contractual definition of capacity.

You can find some of America’s TOP Elder Law Attorneys who can help you with your family’s Elder Care Matters on ElderCareMatters.com – America’s National Directory of Elder Care / Senior Care Resources for Families.

You can also find Elder Law Attorneys on ElderLawAttorneys.us and Estate Planning Attorneys on EstatePlanningAttorneys.us – 2 additional websites sponsored exclusively by the national ElderCare Matters Alliance.

James C. Siebert, Esq., An ElderCare Matters Partner
James C. Siebert, Esq.
Law Office of James C. Siebert & Associates
Arlington Heights, Illinois
An ElderCare Matters Partner

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