3 Things to Know About Alzheimer’s Power of Attorney

We recently sat down with attorney Brad Sauer, to discuss the execution of end-of-life legal documents for those with Alzheimer’s disease. Unfortunately, many caregivers do not understand the importance of living wills and powers of attorney until it’s too late. Because of the nature of the disease, executing these documents can become an ethical issue if they are not done in a timely manner.

3 Things to Know About Alzheimer's Power of Attorney

1. Living Wills and Health Care Powers of Attorney

As an attorney for one of the branches of the military, my responsibilities include providing legal assistance to active-duty service members and military retirees. For military retirees, I am often asked to prepare:

  • A living will (also called an advance medical directive)
  • A health care power of attorney.

The former is a document that permits health care professionals to cease artificial life-sustaining measures when an individual has a terminal condition, permitting the individual to pass naturally.

The latter gives another person (often a spouse or an adult child) the authority to make health care decisions on the individual’s behalf; which takes effect at a lesser stage of incapacitation, such as temporary unconsciousness or diminished cognitive abilities.

Both of these documents are important for a family to have, especially for families with loved ones suffering from Alzheimer’s. These families will often be challenged with ethical issues if the documents are not prepared in a timely manner.

2. The Effect of Alzheimer’s on Legal Documents

To be clear, Alzheimer’s disease greatly effects living wills and a health care power of attorney, as:

  • Only an Alzheimer’s patient can sign the document pertaining to him or her
  • Neither an attorney nor a notary can ethically prepare or notarize a living will or health care power of attorney for a patient that does not understand the nature of the documents at issue

This creates a challenging situation for the patient and his or her family who needs the documents. I am always saddened when a spouse or adult child comes to my office asking for assistance with a loved one with late stage Alzheimer’s. Sometimes the Alzheimer’s patient is present, but it is clear that he or she does not understand why they are in my office, let alone understand a complicated legal document. Sometimes the Alzheimer’s patient doesn’t even come. I am forced to answer that, unfortunately, it is too late.

3. Determining Capacity to Execute Legal Documents

Most attorneys and notaries are not medical professionals, so when determining the capacity to execute a legal document, they err on the side of caution. In fact, some will not even prepare or execute documents for an individual they know has an Alzheimer’s diagnosis.

I feel this approach is extreme, and will personally prepare and execute documents for a person who can explain the basic purpose of the document to me 15 minutes after I explain it to him or her. But, in my experience, most middle to late-stage Alzheimer’s patients are not able to do so.

An Alzheimer’s diagnosis for a loved one is overwhelming.  As you prepare them for the future, be sure to talk to them early about getting a living will and a health care power of attorney.  They may resist at first, but don’t give up; when your loved one needs them, you will both be glad they have one. 

Have you completed a Power of Attorney for your loved one with dementia? We’d love to hear your personal experience and advice in the comments below. 

About the Author

Brad Sauer graduated from George Washington Law School in 2010, and is currently practicing law on active duty status for the military. The views and opinions expressed in this post do not imply endorsement by the United States military.

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Please leave your thoughts and comments

  • Katzenmutter

    Mom hasn’t been able to sign her own name for years now, long before she’s become as incapacitated as she is now. This is extremely scary! Also, given my experience with my father who was a DNR: unless someone is at the hospital at a critical moment, such as when a previously intubated patient starts going bad, unless someone is there to fight it chances are the person will again be placed on a ventilator even though the chart is clearly marked DNR.

  • BAT

    This was first on list for my siblings and I as we realized the importance of being able to say NO to drugs and other nonsense as Alzheimers or another dementia progresses. None of us wants to “live longer” with our cognitive abilities significantly decreased. I just don’t understand the lack of common sense in people who deny themselves and their families the ability to avoid life extension treatment when they have become a burden and probably ceased to enjoy daily living.

  • tora

    Hi, need some help with the question below, any suggestions? thanks

    Mrs. W is 90 and has rapidly worsening Alzheimer’s disease. She lives with her daughter-in-law and son and you know the family are finding it increasingly difficult to cope but
    the waiting list for nursing home care is at least a year. Her daughter visits
    you, the family General Practitioner, and asks that the next time her mother needs medical care, “for a chest infection or something”, you should not treat it but simply allow
    her to pass away peacefully. She is distressed and saddened about her mother’s
    worsening condition.

    What medico-ethical and medico-legal factors would you consider in making a response?

  • Sherry

    I have a father that has Dementia. He forgets things that happen but is able to do most things. He still drives, plays golf etc., I am his guardian, had to get this because he is going through a divorce. I need to know if I can be held accountable for his actions? He is in Assisted Living.

  • Debra

    I had noticed my parents’ health deterioration since 1993 – when we lost my sister to cancer. I already knew that they needed a living will, healthcare POA, and a financial POA – for each other – and to name a contingent since they were both experiencing serious health issues. Dad had serious heart and spine issues, and she was having memory problems. They had already completed their estate wills before the first grandchild was born in 1974. We had many discussions on doing the power of attorneys and living wills for years, but MOM was more hesitant than Dad. Once I was in the process of starting a masters level gerontology health care program, I shared my educational resources – to let them see for themselves how important it was for them – and me, as their only surviving adult child – to get this legal work completed before they became unable to legally sign for themselves. Dad and Mom finally agreed to do them – IF I made the attorney appointments and let them review the paperwork in advance – before they went to sign the (witnessed) documents. The attorney did really well. After they had reviewed the drafts at home …. the attorney made another appointment to discuss the documents with us… to make sure that they both understood – and could repeat what he had discussed. Once the paperwork was signed and filed, I took them their copies..while he was putting them in the fire box, Dad looked at me and said – facing reality once you start getting older and having health problems .. is difficult, but THANK YOU for helping us get this done – now I feel better knowing that YOU will take care of us and our personal business once one of us passes away. …. He passed 3 years later, and I had to invoke my POA’s for MOM – who is now in late stage ALZHEIMERS. Having had done this legal work – was a GODSEND, I didn’t miss a lick picking up where my Dad had left off… with taking care of my Mother’s health and personal business. SO thankful they listened and took care of their future legal needs. 🙂

    • Debra

      A few weeks later, the attorney called to thank me for helping my parents. He commented – that they were lucky to have someone who cared enough to make sure that it was done. Having had known them personally for years, he said… that they were in really in bad shape – and he was glad that they came in when they did. I thanked him for taking the time to go through each sentence, paragraph, and to explain everything…. he told me then – IF they had not been able to repeat what was said – and ask questions about the documents – he would NOT have let them complete the process – and I know that legally – he would have done the right thing.

About The Author

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