Act Soon, and Include Your Parent
Make an appointment to review the legal documents soon, and include your parent in the conversation. A dementia diagnosis does not automatically mean your parent can no longer sign a will, a power of attorney, or a health care proxy. It also does not tell us how much time remains to put those documents in place. We need to understand your parent’s ability to make the particular decisions involved rather than assuming either that everything is fine or that it is already too late.
Capacity Depends on the Decision
Capacity depends on the decision and the document. Someone may have difficulty remembering appointments while still understanding whom they trust to handle finances and why they want to appoint that person. Another person may be unable to understand the consequences of a proposed change. The attorney needs to evaluate that carefully, sometimes with medical input. A diagnosis is relevant, but it does not replace the legal analysis. Neither does getting a signature notarized establish that the person had the required capacity.
Financial and Medical Authority Are Separate
We generally want to look first at who can help with financial and medical decisions. A durable power of attorney can provide authority over financial matters within its terms. A health care proxy addresses medical decisions, and a HIPAA authorization can help the appropriate people receive information. These documents serve different purposes. Being named in one does not automatically give you authority under the others, and being the child who accompanies Mom to every appointment does not give you unrestricted control over her affairs.
When a Health Care Proxy Takes Effect
An existing health care proxy should be located and provided to the medical team. In Massachusetts, the agent’s decision making authority begins after the attending physician makes the required determination that the patient lacks capacity to make or communicate health care decisions. That determination must be documented. The Massachusetts health care proxy statute explains the process. A family should not assume that the diagnosis alone activates the proxy or removes the parent’s right to participate in decisions.
Review the Financial Documents Closely
The financial documents need more than a quick check for a signature. We want to know whether the named agent is still available, what authority the document grants, and whether it supports the planning your parent may need. An old power of attorney may work for paying bills while leaving questions about trusts, property transactions, or other significant decisions. We also review any trust to see how a successor trustee takes over and whether the assets were actually transferred into it.
When Court Involvement Is Needed
If your parent no longer has the necessary capacity and appropriate documents are missing, court involvement may be needed. A guardianship generally concerns personal and medical matters, while a conservatorship concerns finances and property. They are not interchangeable, and the court should consider available alternatives and the person’s remaining abilities. Massachusetts provides guidance on guardianships and conservatorships. This is one reason we encourage families to address the documents early, while the parent may still be able to make those choices personally.
Plan for Care and Payment Together
Care and payment need to be discussed together. Find out what help your parent needs now, what insurance exists, and whether a spouse or other family member is providing care that may become difficult to sustain. Do not start giving away money or changing the deed because someone said that will protect the house. Those steps can affect taxes, control, and eligibility for MassHealth. Depending on the circumstances, we may be able to help with appropriate asset planning or a spenddown, but the details need to come before the transactions.
Keep Your Parent at the Center
Your parent should remain at the center of the meeting. We may need to speak privately to understand their wishes and make sure the decisions are voluntary. That is not an accusation against the children who are trying to help. It is part of protecting the person whose rights and property are involved. Bring the existing documents, a general picture of the finances, and the questions keeping you up at night. The earlier we understand the situation, the better opportunity we have to preserve your parent’s choices and prepare the family for the help that may be needed.
Start with a free 15-minute consult call with Nicole Ott, our Lead Intake Coordinator. Tell her which documents your parent has already signed and roughly when. That is usually enough for us to say what to do next.
