ABA Family Legal Guide

The Rights of Older Americans

A Right to Control Your Own Affairs

Durable Power of Attorney

My father has Alzheimer's disease. I would like him to appoint me to act for him under a durable power of attorney, since he can no longer manage on his own. May he do this now, or is it too late?

It is up to your father to decide if he wants to give you his power of attorney. And it may or may not be too late. Durable powers of attorney and other planning tools must be made while a person still has mental capacity. This is why advance planning is so important.

However, just because doctors diagnose someone as having a specific disease does not mean that the patient is necessarily incapacitated. Also, incapacity does not affect all functions in the same way. Thus, people in the early stages of a disease such as Alzheimer's usually have the capacity to make some decisions. They may have more capacity at certain times of the day than at others, or their capacity may be affected by medication.

Capacity must be assessed on a case-by-case basis. If your father is willing to see a lawyer about writing a durable power of attorney, the lawyer can help assess whether your father understands the purpose and consequences of the durable power. Sometimes a medical assessment will be recommended before signing legal documents.