Can a Patient with Dementia Appoint a Power of Attorney?
Yes, a patient with dementia can appoint a durable power of attorney if they retain decision-making capacity at the time of appointment, as capacity is decision-specific and must be assessed for each particular decision rather than assumed absent based on diagnosis alone. 1, 2, 3
Fundamental Principle: Presumption of Capacity
- Capacity must be presumed present until proven otherwise through specific assessment, regardless of a dementia diagnosis. 1, 2
- The diagnosis of dementia alone does not automatically render someone incapable of making decisions—this is a critical pitfall to avoid. 2, 3, 4
- Even patients with moderate dementia may retain the ability to make certain decisions, including appointing a power of attorney. 1, 4
Decision-Specific Capacity Assessment
The key is that capacity is not global but decision-specific. 1, 2, 3
- A person who lacks capacity to make complex treatment decisions may still retain capacity to appoint a legal representative (power of attorney). 1
- Those lacking capacity for certain decisions may still have capacity to appoint a legally authorized representative to make decisions on their behalf. 1
Four Components to Assess for Appointing a Power of Attorney:
Understanding: Can the patient comprehend what a power of attorney is and what authority they are granting? 2, 3, 4
Appreciation: Does the patient acknowledge their situation and recognize why appointing someone may be beneficial? 2, 3
Reasoning: Can the patient weigh why they are choosing a particular person as their representative? 2, 3
Expression of Choice: Can the patient clearly communicate their decision to appoint a specific person? 2, 3, 4
Practical Implementation Strategies
Optimize Timing and Support
- Schedule the discussion for a "good day" when the patient demonstrates better cognitive function, as capacity can fluctuate in dementia. 1, 3
- Use plain language, visual aids, and corrective feedback to enhance understanding during the appointment process. 1, 3
- Allow adequate time for the patient to process information without rushing the decision. 4
Documentation Requirements
- Document specific evidence that the patient understands the role of a power of attorney and the consequences of appointing a specific person. 3
- Record the patient's reasoning for choosing their preferred representative. 3
- Note that the choice is consistent with the patient's previously expressed values and beliefs. 3
- Confirm the decision is made voluntarily without coercion. 3
Critical Pitfalls to Avoid
- Do not assume incapacity based solely on the dementia diagnosis, age, or appearance. 2, 3
- Avoid making a global assessment of incapacity—specify which decisions the patient cannot make versus those they can. 2
- Do not dismiss a patient's choice as evidence of incapacity simply because it appears irrational to others. 3
- Recognize that even if a patient appears to have impaired capacity in some areas, they may retain the specific capacity to appoint a representative. 1, 4
Legal Context and Urgency
- Appointing a power of attorney becomes urgent after dementia diagnosis, as it must be executed before capacity is completely lost. 5
- Once capacity is lost, the patient can no longer execute a durable power of attorney, and default surrogacy statutes or court-appointed guardianship become necessary. 1
- The process requires access to appropriate legal documents and support from trained health and legal professionals. 5
When Capacity Is Truly Absent
If the patient cannot meet the four criteria for capacity despite supportive approaches, they cannot appoint a power of attorney. 1 In such cases: