A Beginner’s Guide to Legal Terms in Dementia Care
Last updated: December 2022
Wills, power of attorney, guardianship - I thought I knew most all there was to know about these legal matters - after all, I've watched my fair share of legal drama films and TV shows. Then I became a caregiver for my mother living with Alzheimer's dementia.
I realized that the paperwork was more complicated than my limited Hollywood law education taught me. I needed someone to decode the legal jargon in dementia care and tell me what all the terms meant.
Legal terms in dementia care
In the last part of this series, we broke down Medicare, Medicaid, and trusts and why they are important for a person diagnosed with dementia.
Now we're going to cover legal terms like healthcare proxies, power of attorney, and guardianship. Stay with me here; it can be a bumpy ride but we'll get through this!
Note: I am not a legal expert and laws vary by state. Make sure to consult a licensed attorney in your area.
Let's talk about power of attorney
Power of attorney (POA) just means "the authority to act for another person in specified or all legal or financial matters." There are actually a few powers of attorney that your loved one can designate. You can designate different people for each one.
Durable POA for finance is the one we commonly hear about. It allows you to act on behalf of your loved one financially. You have the ability to sign checks, access bank accounts, and manage their houses and properties.
Who can make healthcare decisions for my loved one?
Durable POA for healthcare allows you to act on behalf of your loved one for healthcare decisions. This is especially important for people living with dementia because they often aren't able to express their wishes at some point in the disease.
According to the American Bar Association, You appoint a person and grant to him or her the authority to make medical decisions for you in the event you are unable to express your preferences about medical treatment.1
Most commonly, this situation occurs either because you are unconscious or because your mental state is such that you do not have the legal capacity to make your own decisions.1
This is also referred to as a healthcare proxy or might go by another name depending on which state you're in.
What about living wills?
A healthcare proxy is different from an advanced healthcare directive, also commonly called a living will. A living will is your written expression of how you want to be treated in certain medical circumstances.1
States have their own specific version of this document and it usually just needs to be signed in the presence of a witness.
So, to clarify, a healthcare proxy or healthcare POA is a person granted permission to act on your behalf, and a living will or advanced healthcare directive is a document stating your express wishes about those decisions.
What if my loved one already has a will?
A living will and a Last Will and Testament are different things. A Last Will and Testament takes effect upon death and tells how you want your assets to be distributed.
For a person with dementia, it's usually not enough to just have a Last Will and Testament because it doesn't include healthcare wishes.
A living will, as we mentioned above, states your wishes regarding medical decisions in the event that you are still alive, but incapacitated or can't communicate your wishes.
What's the difference between durable vs. nondurable power of attorney?
A non-durable POA ends the moment a person becomes incompetent or incapacitated. A durable POA, on the other hand, is effective until the person dies, even if they become incompetent.
One important note - a durable POA must be enacted before the person is mentally incompetent. Otherwise, guardianship must be put in place.
What is guardianship?
Guardianship (also referred to as conservatorship) is a legal process used when a person can no longer make safe or sound decisions about his/her person and/or property or has become susceptible to fraud or undue influence.2
A guardian can be any person, including a person the court appoints, and are supervised by the court. They are responsible for making decisions on healthcare, finances, and also everyday care for the person (food, shelter, safety).3
Because this designation takes away so many rights from the individual, it is one that courts don't grant lightly. They will consider capacity and competency. (See part I of this series.)
If your loved one signs a guardianship nomination form before diagnosis or early on in the disease, it can hold greater weight in court.
Pat yourself on the back
Phew, you survived reading through all that dementia care legal jargon! It is never easy to walk through this journey but these paperwork hurdles are important items that will ensure your loved one has their wishes respected at all points in time.
Having an understanding of the legal terms in dementia care and the paperwork out of the way brings a significant amount of peace and allows your loved one to live the fullest life - even while living with dementia.
Have you or your loved one been diagnosed with Mild cognitive impairment?