It is devastating when you notice your aging parents are having trouble making important decisions or are experiencing cognitive decline. If your loved one is having difficulty managing their affairs, you may want to step in to help. However, you may need legal authority to help them with their financial affairs and personal and medical decisions.
Does Your Parent Have Legal Capacity?
The first step is to determine if your elderly parent has legal capacity, that is, the ability to understand and make legally binding contracts or agreements such as a power of attorney. If they do, they can make a power of attorney; if not, you should look into a conservatorship.
What Is a Power of Attorney?
There are different types of power of attorney documents that confer different authority.
A durable power of attorney typically gives immediate authority to an agent to handle financial matters for the principal, and is durable, meaning that even if the principal has an incapacity (such as subsequently being diagnosed with Alzheimer’s disease), the authority continues.
An advance directive or medical power of attorney is a document that allows a principal to name an agent to make healthcare decisions on their behalf. As part of the directive, the principal can detail their own decisions and preferences for end-of-life care and life-prolonging treatments. This is also known as a living will. The healthcare agent can talk with healthcare providers, get medical information, and make decisions about medical treatments.
You will need the appropriate POA document to be able to help your parent. For example, if you need to withdraw money from your parent’s bank account to pay bills, you will have to show the bank the durable POA. If you want to do health care planning, you will need an advance directive or healthcare power of attorney.
How Do You Get a Power of Attorney?
You can get a power of attorney document online or meet with an elder law attorney or estate planning attorney.
If you don’t know whether your parent is competent to make a power of attorney, it is best to consult an elder care or estate planning attorney. An attorney is not a medical professional, but they can ask your parent questions to determine if they have the legal capacity to make a power of attorney, meaning whether your parent knows the legal document they are signing, and whether they understand the legal effect of the document.
If Your Parent Has Dementia or Alzheimer’s Disease
If your parent has an Alzheimer’s or dementia diagnosis, it does not automatically mean they lack legal capacity, but it is tricky. They could have some cognitive impairment but qualify as having legal capacity. If they lack legal capacity, then a power of attorney is not an option. The alternative is to seek a court-appointed conservatorship.
What Is a Conservatorship?
In some states, a conservatorship means the conservator can handle a person's financial affairs, while a guardianship means the guardian can handle a person's personal care, medical, and personal decisions, such as where to live. For example, the guardian can determine if the parent should live in an assisted living, nursing home, or memory care facility, or can age in place at home with caregivers.
In other states, a conservator has the decision-making authority over all financial, personal, and medical decisions. Even though the states have different terms, the conservator or guardianship process is similar.
How Does an Adult Child Get a Conservatorship Over An Elderly Parent?
To get a conservatorship for your parent, you must file a petition with the proper court where your parent lives. This is often in a probate court. In the petition, you describe your parent’s conditions, why they cannot make their own healthcare or financial decisions, and why you or another family member is the best person to be their conservator.
As part of this process, you must notify your parent and close relatives or “interested parties” of your petition. They may be able to support your request or challenge it if they think it is not in your parent’s best interest.
You should expect to provide a medical diagnosis or documentation showing that your parent has dementia or Alzheimer’s disease, and is not capable of understanding information or making decisions about their own well-being. The court appoints an investigator to review the information and meet your parent and other family members or caregivers. The investigator then gives a report to the judge about their mental capacity and whether the conservatorship and conservator are appropriate.
At the court hearing, the judge reviews the petition, medical documentation, and investigator’s report. The judge may ask for you, your parent, or others to testify about your parent’s condition.
The judge then determines if your parent is legally incapacitated and whether you are the appropriate person to serve as their conservator. If granted, you will receive letters from the court to show banks, doctors, and healthcare facilities as proof of your authority.
Because this is a stressful and time-consuming process, you may benefit by working with an experienced elder care or estate planning attorney to help you and your family through it.
Related Resources
- What Is a Conservatorship? 5 Basic Questions (FindLaw’s Law and Daily Life)
- Is Britney Spears Ever Going to Get Out From Her Conservatorship? (FindLaw’s Law and Daily Life)
- Ten Things To Think About When Choosing a Guardian (FindLaw’s Learn About the Law)
