Legal Planning for Parents: Family Members of Alzheimer’s and Dementia Patients Need Legal Advice

The aging process is difficult for many people. Throw in a diagnosis of Alzheimer’s or dementia, and difficult quickly becomes terrifying. The sudden realization that one’s basic memories will be taken away leaves the entire family feeling bereft and unsure about the future. 

In early 2011, my father was diagnosed with dementia. In the five years since the diagnosis, this highly intelligent man who holds three master’s degrees and was once proud of his exceptional memory has become a shadow of the man he was. He no longer consistently remembers his five children and sometimes not even his own wife of 60 years. If only we had realized earlier what we know now.


When faced with a future with Alzheimer’s, the most important consideration is to plan ahead—plan for the worst scenario and hope for the best. In addition to planning for healthcare concerns, patients should seek the advice of an attorney to place advance directives for the future execution of legal, medical and financial affairs. Taking this initiative affords patients the opportunity to decide in advance how medical care and finances should be handled. This pre-planning is critical, as it relieves the guesswork and pressure for relatives. 

According to Estate Attorney Melissa Saunders of Dunlap & Seeger, P.A., the first step may be for the patient to set up a legal power of attorney. This document identifies an individual who will make legal decisions on the patient’s behalf once the patient unable to do so. The patient (or in legal terms, the “grantor”) can only establish power of attorney while still fully in control of his or her own mental faculties. Once the patient’s memory declines, it is not longer possible to declare a power of attorney. In those circumstances—when there is no advance directive or Power of Attorney—the patient’s family has no legal authority to make decisions on the patient’s behalf without court intervention. 


Sadly, many patients and their families overlook the necessity of legal planning. When this happens, families often struggle with finding a balance between honoring the wishes of their loved one versus taking legal action to act in the patient’s best interest or for the safety of others. Does the family have the right to remove the car keys to prevent a dementia patient from driving? Is the family responsible for an Alzheimer’s patient’s bad decisions if it leads to injury or death? Saunders says no. While 30 states, including North Dakota, South Dakota and Iowa, have filial laws or statutes making the children of elderly parents legally responsible for their care and actions in these situations, Minnesota does not. 

“A lot of times a doctor will say, ‘You can’t drive,’ and then will put a letter in the patient’s file,” Saunders explains. If the patient ignores the doctor’s directive, the letter may then serve as evidence for possible criminal prosecution. Saunders adds that she’s never seen that happen in Minnesota.


In cases where there is no advance directive and the patient begins making decisions that put people in danger, it may be necessary for more drastic steps to be taken. “In those areas where they’re becoming a harm to themselves or others, that’s when we need to petition the courts for guardianship and conservatorship, where a judge makes the final decision based upon testimony from the family and the elderly patient,” Saunders explains. “In those proceedings, we’re taking away their civil rights, and where you can absolutely take away the keys and sell the car.” 

Saunders cautions that this action should be avoided. “We don’t ever want to do that if we don’t have to,” Saunders says. “Usually along the way we come to a compromise (and) the individual will agree to a guardianship and conservatorship with some limitations, which prevents the need to go to trial.” This solution preserves the patient’s civil rights while reducing the stress for families.

When diagnosed with Alzheimer’s or dementia, patients should not only plan for long-term medical care, but should consider seeking the advice of an Estate Attorney on preserving their rights and wishes, as well as how best to handle assets to meet financial needs.

Catherine H. Armstrong is a 1992 graduate of the University of Oklahoma where she holds a B.A. in Journalism with a minor in history. An Oklahoma native transplanted in Minnesota, she is the author of The Edge of Nowhere, a work of historical fiction inspired by her own family’s experiences during the 1930s Oklahoma Dust Bowl,