Dementia and Decision-Making
Protecting Loved Ones While Preserving Their Autonomy
When a loved one begins showing signs of dementia, families often face a painful balancing act: how to protect them from harm without taking away their independence. Dementia affects memory, judgment, and the ability to manage daily affairs — but it doesn’t always eliminate a person’s right or ability to make decisions.
Understanding how the law views capacity, and knowing what tools exist to support decision-making, can make all the difference for both safety and dignity.
Understanding Decision-Making Capacity
Legal “capacity” isn’t an all-or-nothing concept. A person may be capable of making some choices — such as what to eat, where to live, or whether to see a doctor — even if they struggle with more complex financial or legal matters.
The law recognizes this nuance. Before anyone seeks guardianship or takes over decision-making, it’s essential to ask:
Does the person understand the nature and consequences of a specific decision?
Can they communicate their wishes in any meaningful way?
If the answer is “yes” for some areas of life, then a more limited or supportive approach may be appropriate.
Planning Tools That Preserve Autonomy
Families often think guardianship is the only way to protect someone with dementia — but in many cases, advance planning can avoid court involvement entirely. Here are the most effective tools:
Durable Power of Attorney (POA)
A POA allows your loved one to appoint a trusted person to handle financial and legal matters if they become unable to. Because it’s “durable,” it stays in effect even after incapacity begins.
Health Care Proxy
This designates a medical decision-maker (health care agent) if your loved one can’t make health decisions themselves. Unlike guardianship, this doesn’t require court approval and lets them choose who they trust to speak for them.
Living Will
A Living Will documents medical treatment preferences — like resuscitation or life-support — ensuring their wishes are followed even when they can’t communicate.
When Guardianship Becomes Necessary
In some situations — especially when no planning documents exist, or when dementia has progressed significantly — court intervention through Article 81 Guardianship may be the only option.
Guardianship allows someone to make personal and/or financial decisions on behalf of a person who can no longer do so safely. However, courts are required to grant the least restrictive level of authority possible. That means a guardian may only handle specific tasks — like paying bills or consenting to medical care — while the person retains other rights.
Even when guardianship is needed, families can request narrow powers and maintain involvement in their loved one’s life and decisions.
Striking the Right Balance
The goal is not to strip a loved one of their independence, but to protect them while respecting their humanity. The best approach depends on timing and communication:
Have conversations early, while your loved one can still participate.
Put legal documents in place before capacity declines.
Focus on collaboration — not control.
When handled thoughtfully, planning can bring peace of mind instead of conflict.
How Moskowitz Legal Group Can Help
At Moskowitz Legal Group, we help families navigate the legal and emotional complexities of dementia planning. Our team assists with:
Drafting Powers of Attorney and Health Care Proxies
Establishing or contesting Article 81 Guardianships
Exploring Supported Decision-Making and other alternatives
Coordinating long-term care and Medicaid planning
We believe in protecting our clients’ safety and dignity — at every stage of life.
Don’t wait until a crisis. Start the conversation today.
📞 Contact Moskowitz Legal Group to schedule a consultation and create a plan that preserves your loved one’s autonomy while ensuring their protection. 212-419-0118
