Capacity Concerns and When Documents Remain Valid
A Durable Power of Attorney (DPOA) is designed to protect you when you can no longer manage your own affairs. But what happens when the very condition it’s meant to address — like dementia or Alzheimer’s — starts eroding your mental capacity? Many families in Florida find themselves wondering if an existing DPOA still stands or if it becomes invalid once memory loss progresses.
The short answer: if your DPOA was properly executed before dementia or Alzheimer’s impaired your mental capacity, it remains valid and enforceable. The key question is when it was signed — and whether you were legally competent at that moment.
Understanding Capacity at the Time of Signing
Florida law requires that the person creating a DPOA (the principal) must have mental capacity when signing. This means you must:
- Understand the nature and purpose of the document.
- Know what property or authority you are delegating.
- Comprehend the potential consequences of giving another person power to act on your behalf.
Once validly signed, a Durable Power of Attorney stays effective even after you lose capacity — that’s what makes it “durable.”
However, if there’s evidence that dementia or cognitive decline had already progressed to the point where you didn’t understand what you were signing, the document could be challenged and possibly declared invalid.
Example:
Helen signed a DPOA two months after being diagnosed with early-stage Alzheimer’s. At the time, she was still managing her finances, recognizing family, and making medical decisions. Her DPOA is valid because she had the necessary capacity when she signed. But if she had been confused, disoriented, or unaware of what she was signing, a court might later void it.
How Dementia Impacts the Use — Not the Validity — of a DPOA
Once dementia or Alzheimer’s advances, the focus shifts from validity to function. The DPOA remains in force, but its use and acceptance by third parties can become complicated.
1. Banks and Institutions May Demand Proof of Capacity or Validity
If a person shows clear signs of dementia, financial institutions may hesitate to honor transactions even with a DPOA in hand. They can legally request:
- An affidavit confirming the principal is still alive.
- Medical confirmation of incapacity (if relevant to triggering agent authority).
- An attorney’s opinion letter verifying the document’s validity.
2. Disputes Among Family Members
If one family member questions whether the DPOA was created when the person had capacity, they can file a petition in Florida probate court to review or revoke it. This often happens when money management or property transfers raise suspicions of exploitation.
3. Agent Misuse Becomes Easier to Hide
Progressing dementia can make it harder for the principal to monitor the agent’s actions. This increases the risk of financial abuse, especially if there’s no independent oversight or accounting system in place.
When a DPOA May Be Invalidated
A DPOA may be challenged or deemed void if:
- It was executed when the principal lacked capacity.
- There is evidence of undue influence, coercion, or fraud.
- The document was improperly witnessed or notarized.
- The agent violates fiduciary duties (misuse of funds, self-dealing).
Under Florida Statute §709.2116, interested parties — such as family members or caregivers — can petition the court to review the agent’s conduct or suspend their authority if abuse is suspected.
How to Prevent Future Disputes
1. Create the DPOA Early
Don’t wait for a diagnosis. The earlier the document is executed, the easier it is to prove capacity. Ideally, sign it while you’re clearly competent and can articulate your understanding of the document.
2. Add a Physician’s Statement
For clients already diagnosed with mild cognitive impairment, it’s wise to include a doctor’s letter stating that the person understood the DPOA’s purpose at the time of signing. This can later prevent family disputes.
3. Record a Video of Execution
A short video of the signing (showing alertness, understanding, and voluntary consent) can serve as strong evidence of capacity if the document is ever contested.
4. Name a Trustworthy Agent — and a Backup
Choose someone with impeccable integrity and financial discipline. In dementia-related cases, appointing co-agents or a professional fiduciary can provide additional oversight.
5. Set Up Regular Monitoring
Require your agent to provide periodic accountings or reports to another trusted person or advisor. This is allowed under Florida Statute §709.2114, which holds agents to a fiduciary duty of transparency and accountability.
Real-World Scenario
Robert, 79, signed a DPOA naming his daughter, Emily, as his agent shortly after his Alzheimer’s diagnosis. His doctor confirmed in writing that he was mentally competent at the time. Two years later, when Robert’s disease progressed, Emily used the DPOA to manage his accounts and sell property for his care. A distant relative challenged the document, claiming Robert lacked capacity.
Because the DPOA was executed early, properly witnessed, notarized, and supported by a physician’s statement, the court upheld it — allowing Emily to continue managing her father’s affairs without interruption.
What Happens If No Valid DPOA Exists
If dementia has already advanced and the person can no longer understand what a DPOA is, it’s too late to sign one. In that case, family members must petition for guardianship through the Florida probate court.
A guardianship gives someone authority to make financial and legal decisions but comes with strict court supervision and ongoing reporting obligations — a process far more expensive and restrictive than a DPOA.
Takeaways
- A Durable Power of Attorney remains valid after a dementia or Alzheimer’s diagnosis — as long as it was signed while the person still had legal capacity.
- Capacity is determined by the ability to understand the document at the time of signing, not by a diagnosis alone.
- Family members can challenge a DPOA if they believe it was executed under incapacity or undue influence.
- To avoid disputes, execute your DPOA early, document capacity, and choose an honest, transparent agent.
- If capacity is already lost, guardianship becomes the only legal alternative.
Planning before cognitive decline isn’t just smart — it’s essential. Once dementia progresses, it’s no longer about drafting documents; it’s about preserving trust, accountability, and dignity through the choices you made while you still could.
