Dementia No Longer a Barrier to the Execution of DPOAs

A Durable Power of Attorney (“DPOA”) for Health Care Decisions is a crucial part of every estate plan. Recent changes in the law have made this document an even greater tool to avoid time-consuming and costly guardianship proceedings.

The Purpose of DPOAs

A DPOA enables you (the “principal”) to provide instructions to a third party (the “agent”) regarding crucial decisions when you are incapacitated and no longer able to manage your health care decisions without assistance.

Properly executed DPOAs enable your agent to provide assistance without having to resort to filing for guardianship proceedings. The delays and expenses encountered by loved ones having to seek guardianship can be devastating.

Requirements to Execute a DPOA

In order to execute a DPOA, the principal must be “of sound mind”. This means you must have the ability to understand the benefits, risks, and effects of signing the document. Dementia is a condition that affects executive functioning (decision-making ability, judgment, and focus). Dementia is not a normal consequence of aging, although it does become much more common as people get older.

While everyone experiences memory lapses or a mild slowing of cognitive abilities as they age, dementia is a pathological condition that impairs thinking to the point of disability. However, a diagnosis of dementia does not automatically mean someone is incapacitated as there is a spectrum of different levels of dementia ranging from mild cognitive impairment to severe dementia.

In the past, there was a concern that a DPOA executed by principal suffering from dementia would not be recognized or enforceable and loved ones would have no choice but to resort to guardianship proceedings.

New Law Regarding DPOAs

In 2019, the Nevada Legislature approved NRS 162A.870 which prescribes a DPOA for healthcare decisions that can be executed by an adult with any form of dementia.

This form essentially nominates someone to make health care decisions for the principal if he or she is sick or hurt and needs to see a doctor or go to the hospital. The document indicates that after you speak with the doctor, you would like the agent to help decide what care or treatment you should receive.

The agent is authorized to see copies of all medical records as well. The DPOA provides that the agent cannot make the principal receive any care or treatment he or she does not want and that the power of attorney may be revoked by telling them of the revocation or reducing it to writing.

The statute also allows for a principal diagnosed with dementia to include end-of-life decisions regarding the discontinuation of medicine or treatment.

The Catch

The DPOA for adults with dementia relates solely to health care decisions and does not authorize the agent to assist the principal with financial decisions. As a result, absent careful pre-planning, the family may still have to result in guardianship proceedings in certain instances.

In addition, the statute provides that the principal must acknowledge that they understand what the designation of the agent means; however, it doesn’t specifically explain this standard. As a result, someone with moderate to severe dementia may not be able to utilize the new DPOA for health care decisions.

Unfortunately, this could lead to challenges to a DPOA if certain family members maintain that a loved one didn’t understand the document at the time it was signed. As a result, it is always recommended to consult with the principal’s physician to obtain additional support that despite the dementia diagnosis, the principal is capable of understanding the DPOA.

In making this determination, the physician will consider the principal’s orientation to time, place, person, and situation; ability to concentrate, short and long-term memory; ability to understand or communicate with others; ability to understand and appreciate quantities and the ability to reason logically.

Despite these potential impediments, the DPOA for adults with dementia is still a useful tool that should be considered. The assistance of an experienced estate planning attorney is vital to constructing an estate plan in order to minimize the prospects of challenges down the road.

For more than 30 years, Attorney Lee A. Drizin has practiced in the areas of estate planning, probate, trusts, guardianship, and real estate matters representing clients throughout the state of Nevada.

Drizin Law is providing this information for educational purposes only. It should not be construed as legal advice or a legal opinion as to any specific facts or circumstances. This information is based on general principles of Nevada law at the time it was created and you should be aware laws frequently change. Moreover, the laws affecting you may differ depending on the circumstances. You should consult with a qualified attorney in your own state or jurisdiction concerning your particular situation. Review of this information does not create an attorney-client relationship.