Too Late! Power of Attorney vs. Mental Capacity

Power of attorney

I frequently receive phone calls from people who want to bring their elderly parent in to execute a Power of Attorney (also called an “advanced directive,” or “POA”).  Let’s say the call is from a Son in this case.  Dad, now in his late 80’s, conveniently put off any estate planning for all these years:  no will, no trust, no advance directives, even refusing to do so after Mom passed years ago.  Son knows what Dad wants, and also knows that his sister, or maybe Dad’s caregiver, has “borrowed” money from Dad in the past, or has an eye on his house, car or savings.  This adult child wants to have Dad execute a Power of Attorney for property, so that Son can make the “right” decisions for Dad’s financial care, and with that POA, maybe “help” him finally draw up his will.

While the initial interview may be with Dad and the adult Son, ultimately, my client is Dad.  I need to interview Dad separately to see if what he wants is the same, or different, from what the Son has told me.  I would like to think that most times, an adult child brings a parent in for a caring, familial reason; but many times, it is not.  I am not a mental health expert, but as an attorney preparing a Power of Attorney, I have to determine if my client – Dad – has the mental capacity at this time to enter into and sign this advanced directive document.  

Two Kinds of Power of Attorney

For this article, I will discuss the two kinds of Powers of Attorney; one for making decisions about property, and the other for medical decision-making.  

Medical Decision Making

The power for decision-making for medical is somewhat self-explanatory.  This appointed person, an “agent,” makes medical care decisions for the principal – Dad – when the principal is unable to make such decisions for himself.  The power of attorney generally comes into effect when Dad simply cannot make decisions on his own, such as if he is in a coma, or under anesthesia.  But when Dad regains the ability to make decisions, the agent’s power subsides, and Dad is again in control of his own medical care.  However, if there is a situation which calls for end-of-life decisions and Dad is unable to articulate his choices, the power of attorney for medical decision-making specifies Dad’s express desires, and the agent is bound to follow Dad’s directives.

Property Decision Making

The power of attorney for property gives the agent the ability to transact financial decisions for Dad’s best interest when Dad is unable to do so.  The agent has the power to buy and sell a home, transfer assets, or sell assets, all with the duty to the principal, Dad, and not with any eye to self-interest, or self-dealing.  This agent now has the highest fiduciary duty, to invest, preserve and maintain dad’s assets for Dad’s care.  You can see the power an agent has with a POA for property.  If Dad is suffering from Alzheimer’s for years, the agent with the POA can either help Dad in life, or strip him of his assets, depending on how this power is wielded. The first question would be:  is Dad competent at this time to assign an agent on a Power of Attorney form, and sign the form himself?

Mental Capacity

Under Illinois law, a person has the mental capacity to sign a POA when he is capable of understanding, in a reasonable manner, the nature and effect of signing an advanced directive.  He doesn’t have to understand and explain every single technical term written in the document, but has to have the ability to understand that by signing this document, he is giving or has given to his agent the power to make these critical, life affecting decisions on his behalf.  It is important for the attorney to verify if the client grasps the intent and power of the document.  

Dementia

If Dad already has been diagnosed with dementia, it may be too late to enter into an advanced directive.  Again, while Dad may need someone to be in that role of making medical and financial decisions on his behalf, he may not have the capacity himself to legally give someone this authority.  So even if Son has come to me because the bank or investment firm won’t let Son access Dad’s accounts to pay his bills, and Son tells me that Dad’s neurologist said that Dad should no longer drive because his cognitive ability has declined, Dad may be beyond the time where he can appropriately execute a Power of Attorney.

Keep in mind that an advanced directive can be executed now and changed in the future.  But it can only be done so long as the principal has the continued mental capacity to do so.  And finally, a power of attorney never gives the agent the ability to create, or change, someone’s will or trust.  The ability to create a will or create a change or “codicil” to a will, can only come from the person for whom the will was created.  

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