Questions regarding Power-of-Attorney, after individual deemed to lack decisional capacity, vs. Guardianship.


Hello, 1) If a family members is designated under a trust to serve as Financial and Health Power-of-Attorney under a previously established trust, does that individual become a legal Guardian after their loved one is cognitive compromised, say for example due to dementia? To my understanding, "competence," is a legal term/facet that is determined by a Court Judge, not a physician. Health professionals can only provide a medical opinion if a individual has "decisional capacity," which is different than competency. 2) Should a person become incapacitated, due to onset of Alzheimer's type dementia or sequalae of CVA, are they able to revoke POA? To my understanding, they are able to do so if there is a "moment of lucidity." The problem exists, however, as a moment of lucidity is just that - transient and often fleeting. Even if this brief clarity does exist, they may not be able to process/synthesize the magnitude of their situation, as they were of unclear mind when being told of their health condition. As an example, person wants to designated his brother as POA, as he no longer wishes to live in a nursing home environment and the brother supports him to leave, despite the person having marked physical ailments (hemiparesis/hemiplegia) that would interfere with safety in a non-skilled environment. 3) As a person must show impairment with "instrumental functions" in activities of daily living, such as handling finances, managing medications, cleaning house, etc. for a diagnosis of dementia to be made, would physical constraints that preclude these activities from being performed independently, due to say a CVA, constitute a deficit with independently executing instrumental/functional ADL's? If physically unable, but cognitively considerably adequate, can a diagnosis of dementia still be made?

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I do not, but thank you for the time to read and respond. Greatly appreciated!
Helpful Answer (0)
Reply to Gekbi219

1. Assuming that you're referring to a Living Trust, it would designate a Settlor (person who created the Trust), a Trustee and a successor Trustee(s). POAs expire on a person's death, and don't interact with authority pursuant to a POA or DPOA.

So the first question in paragraph 1 is that the terms are mutually exclusive.

The balance of question no. 1, as well as questions 2 and 3, is much more technical than can or should be answered by posters (including me) who aren't familiar with more aspects of the situation, or aren't attorneys.

As Ahmijoy insightfully surmised, I think there are some issues on someone declaring either competency or incompetency, and disagreement by other family members.

The definitions can turn on criteria much more complicated than can be assessed or commented on here. I think it would be a disservice to you and to the individuals involved to give opinions other than that these issues really are too technical to be answered by other than attorneys in conjunction with doctors who are more familiar with the underlying issues and criteria, as well as the family issues and perhaps differing positions and opinions.

I hope you do have an attorney who can help you and/or your family in this situation.
Helpful Answer (1)
Reply to GardenArtist

Keep in mind that anyone can bring a lawsuit against anyone else for anything at any time. If you are asking this because there is some family disagreement, you need to protect yourself legally. Bring up these questions with an Elder Law Attorney and let them help you understand the ins and outs of what you need to do to legally represent the person you’re writing about. We can give you advice, but we cannot represent you legally or give you the paperwork and documents you need to have.
Helpful Answer (1)
Reply to Ahmijoy