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Who Makes Legal Decisions For An Older Adult With Dementia?


Elder law in Putnam County and Westchester County is a broad area of the law that encompasses a wide range of legal issues, from asset protection to matters pertaining to nursing home rights. An important matter to consider in the area of elder law is decision-making for an older adult with dementia. When an elderly loved one has been diagnosed with Alzheimer’s disease or another form of dementia, who is permitted to make financial or health-related decisions for that person? Who can manage that older adult’s long-term care options, retirement benefits, and other legal issues? There are several different types of documents that can allow a trusted family member or friend to make these kinds of decisions for an elderly person with dementia, but it is important to seek help from an elder law attorney. Specific documents allow a person to make certain kinds of decisions, and it is essential to work with a lawyer who can ensure that you have all necessary documents in place.

Durable Power of Attorney

With a durable power of attorney, you can name an agent who can act legally on your behalf to make financial decisions. In the early stages of dementia after a person has been diagnosed but still has capacity, that person can create a durable power of attorney naming a friend or family member they trust to handle their financial affairs when they become incapacitated.

Advance Directives for Health Care Decisions

The term “advance directive” refers to a range of documents through which a person can make decisions about their health care, or can name a person who is authorized to make health care decisions for them in the event that they become incapacitated. To name another person who can make health care decisions for you in the event of incapacity, you will want to create a Health Care Proxy. With a living will, you can outline specific wishes concerning your medical care.

Guardianship of an Incapacitated Adult

The above materials, including a durable power of attorney for financial decision-making and advance directives for health care decision-making, must be created while an elderly person still has legal capacity to execute those documents. In other words, if a person’s dementia has already rendered them unable to make financial or health care decisions for themselves, it will not be possible to create a durable power of attorney for financial matters or advance directives like a Health Care Proxy. Instead, you may need to petition the court for a guardianship of an incapacitated person. This type of case is sometimes known as an Article 81 case. In this kind of case, according to the New York Unified Court System, “a judge must decide whether a person is incapacitated and if they need to have a guardian appointed.”

Under New York law, a guardian can be appointed to make important decisions on behalf of an elderly adult if both of the following are true:

  • Older adult is “unable to care for their own property and/or personal needs”; and
  • Older adult is “likely to suffer harm because they cannot understand the consequences of not being able to care for their property and/or personal needs.”

Contact a Mahopac or Pleasantville Elder Law Attorney

If you have any questions about elder law matters pertaining to an elderly loved one with dementia, or financial or health care issues, you should seek advice from a lawyer who can help. One of the experienced elder law attorneys at Meyer & Spencer, PC can speak with you today about your circumstances.





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