Legal Considerations When Facing Incapacity

Alzheimer’s disease and other forms of dementia can leave an individual no longer able to comprehend legal documents. Before such incapacity the person should:

  • Execute all necessary legal documents.
  • Arrange all assets properly.
  • Plan so that an unscrupulous individual cannot take advantage of the situation.

Legal Counsel

Documents are the implementation tools of an effective plan. Attorneys can assist in the preparation of certain legal documents, can explain whether or not a particular document is necessary, or can refer the individual to other resources. Some private attorneys and legal service lawyers are quite knowledgeable about the various benefit programs that exist in the State of Florida. Be sure to ask the lawyer to tell you about his or her background and expertise in the public benefits area before engaging his or her services.

Particular problem areas commonly arise when dementia is involved. Each individual facing dementia has a specific set of circumstances that make it advisable to speak directly to an attorney and receive legal advice tailored specifically to the individual.

All legal documents, including wills, trusts, powers of attorney, and “living wills,” require that the individual signing the document have mental capacity and the ability to comprehend the significance of the document he or she is signing. In the case of an Alzheimer’s patient, it is essential that the above named documents be signed before the patient’s condition progresses to the point at which he or she is no longer capable of signing a legal document. If the Alzheimer’s patient had previously executed a legal document, it is very important to consider whether or not the document should be amended or revoked while the Alzheimer’s patient retains the capacity to do so.

Power of Attorney

A power of attorney is a common document used by individuals who wish to have someone act on their behalf without requiring their active participation. For example, if one wished to sell a car, he or she could sign a power of attorney to the person who would actually conduct the sale, and that individual would then have authority to transfer title for the vehicle. The obvious danger in a power of attorney situation is that, once an individual conveys that responsibility to someone else, the individual receiving the power of attorney can act in his or her own self interest or dishonestly, particularly if the person giving the power becomes incapacitated. There is currently no third party oversight in this arrangement; therefore, it is necessary for one to be extremely cautious whenever powers of attorney are involved. A power of attorney should be given to only those individuals who are clearly trustworthy.

A regular general power of attorney will not have validity when the individual granting the power of attorney loses his or her capacity to make decisions concerning his own needs. A power of attorney must be “durable” under Florida Law and state so specifically to remain valid when the patient no longer has capacity. In 1995 Florida passed a law which provides for an affidavit by the attorney in fact which states that he or she is the named person under the power; that the principal is still living; and that the principal has not revoked the power. The affidavit is sufficient to exonerate from liability the person or business accepting the power of attorney and to assure the attorney in fact the ability to carry out his powers of appointment as specified in the document.

There are other ways to provide assistance to Alzheimer’s patients before they become incapacitated. Often, simply adding the name of a trusted individual to the bank account of an Alzheimer’s patient provides a way in which the patient’s expenses can be paid. The bank account should be designed so that either the Alzheimer’s patient or the other individual can make withdrawals and deposits. If the Alzheimer’s patient doesn’t want the person to inherit the proceeds of the account on the patient’s death, the helper can be added as a “convenience” signer rather than an owner so that the patient’s testamentary wishes can be followed. Again, choosing trustworthy individuals is critically important if that individual’s name is to be added to an account.

Health Care Power of Attorney

Florida law provides for a “Designation of Health Care Surrogate.” The surrogate can make health care decisions only when the patient is unable to make such decisions for himself or herself. The surrogate only has power to make decisions in a hospital, nursing home, or hospice. The surrogate is entitled to:

  • Have authority to act for the patient and to make health care decisions during the patient’s incapacity. These decisions must be in accordance with the patient’s instructions, unless the patient has expressly limited such authority.
  • Consult with appropriate health care providers to provide informed consent in the best interest of the patient.
  • Provide written consent using an appropriate form whenever consent is required.
  • Be provided access to the appropriate clinical records of the patient.
  • Apply for public assistance benefits, such as Medicare and Medicaid, for the patient.
  • Authorize the release of information and clinical records to appropriate persons. The surrogate may also authorize the admission and transfer of the patient to or from a health care facility.
  • If, after the appointment of a surrogate, a court appoints a guardian of the patient’s estate, the surrogate shall continue to make health care decisions for the patient. The surrogate may report the patient’s health care status to the guardian.
  • Withhold or withdraw life-prolonging procedures if the patient has specifically authorized the surrogate to make such decisions under Florida’s Living Will Statute.

In addition to the Designation of Health Care Surrogate, the statute governing Durable Powers of Attorney provides that the Durable Power of Attorney may include health care powers. Hopefully, the various laws dealing with health care proxies will be consolidated to do away with the current confusion regarding the various powers.

Trust Arrangement

A revocable living trust is often the best safeguard for financial assistance for the Alzheimer’s patient. Each case must be examined to determine whether the trust can be used to the patient’s advantage and whether such arrangement is cost effective. A properly drafted trust may be able to avoid the necessity of guardianship proceedings that are financially and emotionally costly to the patient and family.

Under certain circumstances, a special type of irrevocable trust, commonly known as a “Special Needs Trust” or “Supplemental Needs Trust,” can be established to protect assets and still allow the patient to qualify for Medicaid assistance. It is important that the patient and family work with a lawyer familiar with Florida Medicaid planning to provide the protection contemplated. Do not rely on general “self help” books, as the laws of each state are very different. The Medicaid regulations are in a constant state of change as well; therefore, it is very important that the planning complies with current rules. If a person has assets low enough to qualify for benefits, but has income over the designated Florida cap (which changes every January 1st), she or he will not qualify for nursing home Medicaid under Florida’s Institutional Care Program, unless a special trust, a Qualified Income Trust, is implemented.

Living Wills

The Florida Legislature has drafted statutory forms for advanced directives, including the Living Will and Designation of Health Care Surrogate. These documents may be sufficient for your needs; however, you should know that many people add specific information that make the documents fit individual needs not provided for in the statutory form. For instance, the Florida Statute form does not provide for the removal of tubes that provide food and fluid (commonly referred to as “feeding tubes”).

Every patient has a right to understand treatment proposed by a health care provider, including cost, risk, and alternatives to the proposed treatment before consenting to such treatment. This right is known as the right of “informed consent.” Every patient has the constitutional right to refuse proposed treatment either personally if the patient has the mental capacity to do so or through a surrogate or proxy if the patient lacks such capacity. If someone is acting as your surrogate, they are required to make decisions based on their understanding of your feelings, not their own. Therefore advance directives that are as specific as possible will probably be of greater benefit if the directives come into actual use.

Even with a living will, there is no guarantee that medical providers will honor the document. Many Florida hospitals will refuse to follow treatment (or no treatment) wishes or require a court hearing to determine the course of treatment if the patient’s wishes are not stated explicitly in the living will.

Do not assume that simply because the living will and health care surrogate forms are provided by a hospital, nursing home, your doctor, The Florida Bar, or anyone else, that these documents reflect your particular wishes. These documents give the person you name as your surrogate the authority to make any and all health care decisions for you in accordance with your values, your religious and moral beliefs, at a time when you do not have the mental capacity to make the decisions for yourself. Your surrogate may consent, refuse to consent, or withdraw consent previously given to medical treatment and may make decisions about withdrawing or withholding life-sustaining treatment. If you have any doubts about the documents provided for you, you should discuss these matters with your doctor and may want to have them prepared by a lawyer experienced in this area of the law.



When all else fails, a guardianship can be established to provide for the needs of the Alzheimer’s patient. Florida’s guardianship law is designed to protect the rights of a person wrongly accused of being incapacitated. Although the protection is a laudable goal, such protection comes at a price. In order to commence guardianship proceedings, a Petition to Determine Incapacity is filed accusing the patient of partial or total incapacity. If it appears that the patient should keep certain rights, a “Limited Guardianship” is sought. If the person filing the petition believes the patient is not capable of maintaining any rights, a “Plenary Guardianship” is sought. The Court appoints a lawyer to represent the interests of the “alleged incapacitated party” and the case proceeds much like contested litigation. Fees and costs typically run thousands of dollars, and significant ongoing reporting to the Court is required for the life of the patient. Generally guardianship is a last resort remedy for people who were unwilling to plan.

For a related article on our web site, see What Is An Elder Law Attorney? If you live in Pasco or Pinellas County, Florida, find data about many local elder law attorneys by running a search on the online database on our web site,  or call the Helpline at 1-800-963-5337. For inquiries from outside of the area call 727-217-8111. The Florida Bar Association can provide a list of elder law attorneys by county. Call 1-800-342-8060. The National Academy of Elder Law Attorneys (NAELA) provides a listing of elder law attorneys by area anywhere in the United States.