12670 NW Barnes Road, Ste. 102

Portland, OR 97229

(503) 445-2232


Planning Around Incapacity

February 16, 2018

Jane moved into assisted living one year ago.  she has never completed a power of attorney or advance directive.  She has dementia but remembers her loved ones, takes care of her own banking, and has good long-term memory.  Jane’s niece, who is recently back in her life, has convinced Jane to move in with her.  Jane’s daughter does not think it would be good for Jane to move.  This scenario highlights the difficult position you as community providers, your residents, and resident’s families face. 


Friends, family, caregivers, and others involved in the life of someone with fading capacity must make difficult decisions on behalf of their loved one’s driving, housing, paying for care, selling assets, and applying for government benefits.  Common questions include: 


Q:           My Dad was diagnosed with dementia…is it too late for him to sign a power of attorney?

Q:           My name is not on the deed to the house I share with my husband who has advanced dementia…how                    can we sell the home now that that he needs care?

Q:           My Mom is no longer safe at home…can we move her without her permission?

Q:           I think my sister, who has power of attorney, is making bad decisions on behalf of my parents…what can                be done to stop her?


These issues often come to a crossroad for community providers who serve older adults and their families; especially when no documents are in place.  Who has authority to make placement decisions, who are you authorized to speak with, and at what point should you suggest a person consider a conservatorship or guardianship on behalf of a loved one?  The answer to these questions depends on the facts, yet there are good practices, important guideposts, and helpful language you can use when speaking to families or residents about these delicate topics.    


Incapacity is when as a person is not able to understand, assess, and comprehend information, make decisions for themselves, or communicate their wishes.  Healthcare, food, shelter, and safety are of primary concern with serious physical injury or illness likely to occur without intervention.


In general, planning on the front end is always better than crisis planning.  Working with a person on a Power of Attorney, Advanced Directive, and Health Information Release is one of the most important aspects of elder law.


Gathering a person’s wishes before their lack of capacity denies them the ability to do so for themselves, gives a person a voice when they otherwise may not have one.


Planning is vital.  When it does not happen, there are more restrictive alternatives such as guardianship over the person and conservatorship over finances.   These court interventions require more time and money.  They also provide more oversight and potentially more protection.


Call NW Estate Law, LLC to see if planning is a good idea for you or your loved one at 503-445-2232.





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