Dementia in older adults or other mental illness in adults of any age can devastate the lives of the afflicted and their loved ones. The possible inability to manage financial affairs can have consequences that last long after a mental illness episode and, for elderly dementia patients, may have a negative impact on long-term care options. A properly written and executed power of attorney can prevent financial mismanagement and self-destruction.
Discuss power of attorney with a person who is vulnerable to mental incapacitation while he is competent and capable of making reasonable decisions. In order for a power of attorney to be valid, it must be executed, or signed, when the grantor, or, in this case, the patient, is able to understand the effect that the power of attorney will have on his affairs.
Make the power of attorney durable. A standard power of attorney ceases to be valid once the grantor is deemed incompetent. Language within the contract must state that this power of attorney is in effect during times of incapacitation, making it a durable power of attorney.
Have the durable power of attorney notarized if the parties involved anticipate that the agent will need to conduct real estate transactions. Even a durable power of attorney has limitations, one of which is the inability of the agent to buy and sell real estate. If the contract may need to be used for this purpose, a notary must be present during the signing to notarize the document.
File the notarized durable power of attorney. For a notarized durable power of attorney to be valid in real estate transactions, it must be filed with the register of deeds where the grantor resides.
- A durable power of attorney does not give the agent control of medical decisions.
- To assist the patient in making medical decisions during periods of incapacitation, you will need either an advanced psychiatric directive, as in the case of the mentally ill patient, or a durable power of attorney for health care, as in the case of dementia patients.
- If the person who may potentially become mentally incompetent receives social security benefits, you may be able to apply for representative payeeship, which is a designation made by the social security administration and is considered involuntary.
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