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How to Get Guardianship of a Parent with Dementia

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When a parent is diagnosed with dementia, some things are going to change. You’ll need to take active steps so they can get the proper care and support needed to live with a high quality of life. But what if their dementia has progressed to the point where they can no longer make legal decisions for themselves?

If you believe your loved one is no longer capable of making legal decisions for themselves, it’s time to pursue something called a “Petition to Determine Incapacity.” This allows a court to appoint a person to your parent to make legal decisions on their behalf. 

How Dementia Affects Decision-Making

When it comes to dementia, understanding the condition is a good place to start. Dementia isn’t a single illness. Rather, it’s an umbrella term for many different neurodegenerative disorders that eventually lead to a decline in cognitive function.

This disorder affects almost all aspects of a person’s life. It can alter a person’s behavior, damage their memory, and cause personality changes. One of the most important factors to understand is also a rather complicated one: dementia often causes a person to make rash, if not entirely irrational, decisions.

Dementia is also progressive, which makes this more complicated. There may not be a pattern to their decisions or behaviors, making it difficult to determine whether or not your loved one is capable of making decisions in their own best interests. This becomes much more difficult when legal matters are at hand.

Can a Person with Dementia Sign Legal Documents?

There’s a common misconception about dementia. Many people believe that the second a person is diagnosed with the condition, they’re no longer able to make decisions for themselves.

This isn’t entirely true. Rather, it greatly depends on how far dementia has progressed, and whether or not the person is considered to be legally capable of determining their own decisions and making choices that benefit them. Or, if they’re more likely to make decisions that are difficult to track.

The law recognizes varying degrees of capacity. At a minimum, a person must understand the nature and effect of a transaction. For example, the person acquiring a will must know the implications of doing so, and be of sound enough mind to be deemed qualified to make this decision.

However, for more complex legal actions, a higher level of understanding, memory capacity, and cognitive abilities are required. This changes depending on the complexity of the legal act in question. 

When the cognitive abilities of a person with dementia are questioned, it’s essential to schedule a proper assessment with a qualified medical professional. Usually, this can be your general physician, though this may vary depending on location.

After this assessment, you will have one of two options available to you going forward:

  • If your loved one is deemed to be legally capable of making decisions but is diagnosed with dementia, you will need to consider Power of Attorney
  • If your loved one is determined to be legally incapable of making decisions due to their dementia, you will need to consider applying for a Petition to Determine Incapacity

What Is Power of Attorney?

A Power of Attorney (POA) is a crucial legal document that allows a person (the Principal) to appoint another person (the Agent) to make legal and financial decisions on their behalf. The Agent will be capable of making legal decisions regarding matters such as:

  • Property and asset management
  • Investments
  • Banking and financial matters
  • Medical care

There are several different types of Power of Attorney, each with a unique level of power given to the Agent. However, above all, the Agent must make any and all legal decisions with the best interests of the Principal at heart.

When a person has dementia, a Power of Attorney can be an excellent pre-emptive measure to make sure their wishes are carried out by someone they trust. It’s a proactive approach to getting the care a person wants and needs after their cognitive abilities restrict them from making these decisions for themselves.

Filing a Petition to Determine Incapacity

However, what if your parent is no longer deemed legally capable of making their own decisions? The situation becomes a bit more complicated since your loved one is now considered unable to appoint a Power of Attorney for themselves.

If obtaining a Power of Attorney is no longer a viable option due to the advanced nature of your parent’s dementia, the next step is to consider filing a Petition to Determine Incapacity. This legal process will result in the court appointing a guardian to make decisions for the incapacitated individual.

There are several steps to this:

  • Petition preparation
  • The hearing process
  • Guardianship appointment

Preparing for the Petition

Before filing the petition, the court will require a comprehensive medical examination to establish the extent of incapacity. This evaluation should be recent and conducted by a mental health expert. This information will be submitted to the court.

The Hearing Process

If the court determines that the individual is indeed incapacitated, a hearing will be scheduled. This is an opportunity for all interested parties to provide evidence and testimony relating to the incapacitation.

Appointing a Guardian

If the court finds in favor of incapacity, a guardian will be appointed. This may be you, another family member, or a professional guardian. The guardian takes an oath and is required to carry out their duties in the best interest of the Ward (the incapacitated parent).

An older adult man with his daughter hugging him in a living room

Making the Right Choice for Your Loved One

When a parent has dementia, it can feel overwhelming—especially if trying to navigate the complex legal matters involved with Power of Attorney and a Petition to Determine Incapacity. 

Once the legal matters are settled, your parent will need a community where they can live a fulfilled life and be surrounded by trained caregivers, like ours at The Fairways at Naples.

Here at The Fairways at Naples, our memory care community aims to provide each and every resident with the support and love they need for a higher quality of life. So schedule a visit with us today, and let’s work together to find your parent their future home.

Written by Fairways At Naples

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