Can a Dementia Patient Revoke Power of Attorney

In the event of a sharp decline in your mental or physical health, it’s wise to have already assigned power of attorney–legal authority to make decisions on your behalf–to someone you trust. This can ensure that your wishes and best interests will be honored when you are no longer able to advocate for yourself. The person you entrust with this authority is then referred to as your attorney-in-fact.

But what happens if there is conflict or disagreement between a patient and the attorney-in-fact? Alternatively, what if the original attorney-in-fact becomes unable or unwilling to shoulder the responsibility and needs to pass the reins to someone else? Can a dementia patient revoke a power of attorney?

As long as they have not been declared legally incapacitated, persons with dementia retain the right to alter or revoke a power of attorney. However, if someone is legally incapacitated, they are unable to take any legal action, including the revocation of a power of attorney or creation of a new one.

What does it mean to have dementia?

Dementia is the blanket term for a collection of symptoms accompanying declining mental function, including memory loss, problems with mental focus, reasoning, judgment, and communication.

These symptoms most frequently come on as the result of a disease such as Alzheimer’s, Parkinson’s, or Huntington’s disease. Dementia can also be brought on due to the lack of blood getting to the brain after having a stroke. 60-80% of dementia patients suffer from Alzheimer’s Disease.

At what age does dementia usually start?

According to the Mayo Clinic, dementia is not considered a normal part of aging. In those who do develop this condition, symptoms are most likely to show up in people age 65 and older. (Dementia: Symptoms and Causes)

However, symptoms of dementia can begin to show up for people in their 30s, 40s, and 50s. Dementia does often set in gradually and can sometimes be reversed or slowed in acceleration through lifestyle changes and/or medical care.

Can a person with dementia make a power of attorney?

Having dementia can take a significant toll on one’s memory, reasoning, and decision-making skills. Understandably, this often fills family members with questions and concerns about their loved one’s capabilities.

Whenever possible, it’s best to create a durable power of attorney while you are still healthy and as capable as possible. This allows you to make your wishes very clear to your attorney-in-fact so they can confidently act in your best interest, should you lose your mental capacity.

However, even if your mental health has already suffered a decline, it’s not too late to appoint someone to this role. A diagnosis of dementia (or any illness that causes it) does not remove your right to make legal decisions.

What happens if an incapacitated person has no power of attorney?

If a person is declared incapacitated and there is no power of attorney in place, a close friend or family member may appeal to the court for guardianship. The court may appoint a person or organization of their own choosing if there are no appropriate friends or relatives.

Guardianship can apply to specific areas–such as over medical, financial, or legal decisions only. It could also mean responsibility for the physical care of the incapacitated individual–or for all of the above, in some cases.

Sometimes, a judge may appoint different family members guardians of different areas of the incapacitated person’s life.

What determines mental capacity?

Mental capacity is the ability to assess information and use it to make informed decisions. It is important to assume that all individuals have mental capacity unless it is proven otherwise.

The cognitive abilities consistently considered to indicate capacity include: (Competency and the Capacity)

● Ability to evidence a choice

The ability to make a decision and express it to others is considered an indication of having a capacity. However, the quality of the decision made is not a factor in assessing this particular ability. What is being assessed here is simply if this person can make and maintain a choice and also if they are capable of communicating it.

The right to change one’s mind is retained, and retracting a decision does not render someone incapable of making choices.

An example of how “ability to evidence a choice” can be assessed is by giving the patient information about their medical condition and possible treatment options, and then having them respond to what they’ve just heard.

● Ability to understand relevant information

Of course, being able to make a choice is meaningless if a person is incapable of understanding what they are agreeing to or declining.

The presence of this ability can be assessed by asking patients to paraphrase information they’ve been given (the description of a procedure a doctor has recommended, etc.). Of course, this may become more challenging if there is a language or communication barrier, or if the procedure described is given with too much jargon or technical language.

● Ability to appreciate the situation and likely consequences

This standard of capacity is more subjective, and therefore, more difficult to accurately assess.

Appreciation goes beyond the ability to comprehend what a particular procedure involves and what it’s for. It’s the ability to understand the personal, real-life consequences that an illness, procedure, or refusal of treatment may have.

The appreciation assessment involves examining the patient’s ability to not only weigh the risks and benefits of a procedure but to apply these against their own values and preferences.

It’s important to remember that an individual’s choices may not be the same ones that most reasonable people would make in the same situation.

● Ability to manipulate information rationally

The ability to apply logic and compare information–such as the benefits and risks of treatment options–is the fourth component to a capacity assessment. This standard is concerned with an individual’s decision-making process, not their decision itself.

A psychiatrist will use a mental status examination to assess this ability–typically a questionnaire or other similar screening tool.

These examination tools provide a concrete way to assess cognitive function and can indicate the severity level of a patient’s dementia. However, they cannot single out and measure decision-making ability. It is possible for a person with impaired cognitive function to still have this ability present.

There are a number of other factors that can affect how well someone performs on these formal tests, including but not limited to: level of education, stress, mood states, the experience of hallucinations or delusions, and other thought-form disturbances.

Capacity assessments are best done in 2-3 settings and over the course of a few days. This way, the consistency of responses can be taken into account. However, these assessments are susceptible to human error and the subjective opinion of the person administering the test.

CAVEAT: Please consult a medical professional to assess the mental capacity level of yourself or any other individual, as the above descriptions are strictly for informational purposes.

Do people with dementia lack capacity?

Simply having dementia (or a disease that causes it) does not equal a lack of capacity. Symptoms span a wide spectrum, and those with mild-to-moderate cases often do retain some of their ability to evaluate and apply information and make choices in their own lives.

From a legal standpoint, all people, regardless of diagnosis, appearance, or behavior, are assumed to have capacity unless proven otherwise.

In most cases, capacity may only be assessed for the immediate situation at hand–as dementia patients may experience fluctuations in capacity levels, influenced by internal or external factors.

What is a decision-making capacity?

In order for any patient to give informed consent to (or refusal of) any treatment or procedure, these three components must be in place:

1. The patient is not being coerced or under duress.
2. The patient is given all information relevant to making a decision about a proposed treatment.
3. The patient possesses the capacity to make a reasonable choice about accepting or declining a treatment.

If a patient shows reasonable evidence of the ability to understand and weigh information and use it to make a decision, they are considered to have decision-making capacity.

Who makes the decision that someone lacks capacity?

A person can only be declared legally incapacitated by a judge in a court of law.

The court bases its decision on the opinions offered by medical professionals who have assessed the individual in question.

If this person (or family member on their behalf) contests the declaration of incapacitation, a court-appointed psychiatrist or psychologist will be brought in to re-assess the individual.

When someone is determined to be completely incapacitated, the responsibilities for managing that person’s finances, medical care, and other personal care responsibilities will be assigned to someone else–in most cases, this will be a close family member.

Having a durable power of attorney in place before you reach the point of incapacitation can ensure that the person you trust most will be given that power.

It is possible to be declared partially incapacitated, which may require someone else to handle one area, finances, for example, while you retain the right to make decisions in all other areas.

Legal capacity can be restored in the event of recovery from symptoms of a debilitating illness or mental health condition or if a ruling of incapacitation is contested and shown to be inaccurate.

Why is it important to assume a person has capacity?

It’s unfair and discriminatory to assume that a person lacks capacity simply because they have been diagnosed with a particular disease or disorder–even if that disease has contributed to a degree of mental decline.

The liberty to make decisions for oneself is an important basic right. A judge will not revoke that right without very clear evidence that the individual in question lacks the ability to make informed choices, and their own safety and well-being may be jeopardized as a result. Even then, whenever possible, a ruling of incapacity or incompetence will only be applied to a specific area of life (finances, medical decisions, etc.).

What is the Mental Capacity Act?

Implemented in 2005, the Mental Capacity Act goes hand-in-hand with a “Code of Practice” for physicians. This Act is designed to provide protection to individuals who lack capacity, where before there was no legal standard in this area.

Mental Capacity Act: 5 Principles

The key principles of the Mental Capacity Act, as outlined by The BMJ, are: (Assessing Mental Capacity)

1. Presumption of capacity

Regardless of a person’s diagnosis, appearance, or behavior, capacity should always be assumed unless proven otherwise.

2. Individuals being supported to make their own decisions

Every practical opportunity must be exercised to help patients make decisions on their own behalf, before assuming incapacity. This includes allowing plenty of time when conducting assessments, allowing individuals with fluctuating capacity the option of re-taking an assessment and enlisting the use of pictures, sign language, or an interpreter, where appropriate.

3. Unwise decisions

Patients are still assumed to have a mental capacity even if they make unwise decisions. The decisions themselves are not indicative of a lack of capacity. It is the mental process involved in making the decision that determines a person’s level of capacity.

4. Best interests

All decisions made and actions taken on the behalf of an individual who lacks capacity must be in their own best interest. When determining what is in this individual’s best interests, it is important to consider not only the option with the most promising clinical outcome but also what this individual would have wanted if they still had capacity.

5. Less restrictive option

All such decisions or actions must reflect the option placing the least amount of restriction on the basic rights and freedoms of the person lacking capacity.

There are cases in which restraint may be considered necessary. Restraint is defined in this case as forcing (or threatening to force) someone to do something against their will. In some instances, this may include physical restraint.

There must be a reasonable belief that restraint is going to keep the person lacking capacity from harm, and the degree of restraint used must be proportionate to the seriousness and likelihood of potential harm.

What does mental competency mean?

To be considered mentally competent, a person must be capable of understanding and making informed decisions regarding their specific situation. They must also be able to understand the potential consequences of any actions they plan to take.

In a medical situation, for example, a mentally competent person would be able to comprehend their diagnosis and weigh the consequences of either taking or declining a doctor’s suggested treatment plan.

What is the difference between competency and capacity?

Having competence is being able to effectively make informed decisions relative to a specific issue. For instance, someone may be competent in making decisions regarding their medical care, yet lack competence in another area, such as representing themselves in a court of law.

Competence is a legal definition, not a medical one. All individuals are presumed competent unless proven otherwise.

Capacity is the psychological capability to assess information rationally and make informed decisions. Capacity (or lack thereof) is determined by a medical professional, not by a court of law.

How is mental incompetency determined?

Simply having an illness or disability does not necessarily render someone mentally incompetent–nor does eccentric behavior or occasional forgetfulness. Competency is always assumed unless a court of law determines otherwise.

The legal process for declaring an individual mentally incompetent is as follows:

1. A motion for a competency hearing is filed.
2. A psychiatric and/or psychological evaluation is performed.
3. A competency hearing is held, in which the court examines the results of this evaluation and makes a decision.

When should someone’s mental competency be assessed?

Only a court of law can determine an individual is mentally incompetent. However, according to The Public Legal Education and Information Service of New Brunswick, consistent observation of any of the following signs may be indicative of the need to assess a person’s competence: (Mental Competence)

• A person is not caring for themselves and/or their affairs and failing to enlist appropriate help to do so when necessary.
• A person is unwilling to accept help to the point that their safety is at risk, and they are incapable of remedying the situation on their own.
• A person has been declared mentally incompetent and files an appeal against this finding.

Remember, it’s always best to consult a lawyer before taking any legal action.

Related questions

Is a durable power of attorney valid after death?

Once a person dies, their durable power of attorney is no longer in effect. The executor of the estate makes any remaining decisions on behalf of the recently deceased. It is, of course, possible to make your attorney-in-fact and executor the same person.

Does guardianship override power of attorney?

A durable power of attorney will remain intact until a person’s death and is therefore still valid even after the guardianship is granted. However, a guardian may petition the court to revoke a power of attorney if the person with POA is not acting in the best interests of the incapacitated person.

Is there a difference between guardianship and conservatorship?

Guardianship gives the authority to act on someone’s behalf regarding health and personal care. A conservatorship gives the authority to handle their finances. One person may be appointed to act as both, or the roles may be assigned to separate individuals.