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Legal planning is essential for all seniors and retirees, but it is especially important for seniors diagnosed with Alzheimer’s or dementia. According to the Alzheimer’s Association, “While it’s important for everyone to plan for the future, legal plans are especially vital for a person diagnosed with dementia. The sooner these plans are put in place, the more likely it is that the person living with dementia will be able to participate in the process” (alz.org). The Alzheimer’s Association says that legal planning includes preparation for long-term memory care and extended medical needs, making financial and property arrangements, naming another person or people to make decisions for the person diagnosed with dementia, and finalizing the end-of-life arrangements (alz.org).
In the first instance, a person diagnosed with dementia or Alzheimer’s will have a legal capacity during the early stages, as long as they understand the documents and the importance and the consequences of executing such documents. The Alzheimer’s Association asserts, “as long as the person has legal capacity, he or she should take part in legal planning. A lawyer can help determine what level of legal capacity is required for a particular document, as it can vary from one type of document to another” (alz.org). In addition to determining whether a person with dementia has legal capacity, a doctor will determine what level of cognitive capacity still remains.
Legal documents will be need to be reviewed. If the person living with dementia had previously drafted a living will and last will and testament, these documents will need to be reviewed and any changes required should be made sooner rather than later with the directive of the patient and their power of attorney (POA). The POA should be provided the authority to carry out specific functions, such as addressing their long-term memory care and end-of-life wishes. If these documents were not addressed prior to the diagnosis, then time is of the essence to get them in place before dementia worsens and legal and mental capacity diminish.
“A power of attorney document allows a person living with dementia (the principal) to name another individual (an agent or attorney-in-fact) to make financial and other important decisions on his or her behalf once he or she no longer can. Typically, the agent is a spouse, domestic partner, trusted family member or friend,” explains the Alzheimer’s Association (alz.org). Consider naming a successor agent in the event the original agent is unavailable to serve. “Power of attorney documents should be written so that they are ‘durable,’ meaning they are valid even after the principal is incapacitated and can no longer make his or her own decisions. The person living with dementia maintains the right to make his or her own decisions as long as they still have legal capacity. Power of attorney does not give the agent the authority to override the principal’s decision-making until the person with dementia no longer has legal capacity,” concludes the Alzheimer’s Association (alz.org). The POA becomes responsible for managing income and assets according to the wishes and best interests of the person with dementia.
There are also advance care directives that will need to be put in place. These decisions should be talked about with loved ones, doctors, hospitals, memory care facilities and the power of attorney to ensure that all wishes are met for the dementia patient. This ensures that everyone is all the same page when decisions need to be made about medical procedures when the person living with dementia is not able to make those medical decisions. The Alzheimer’s Association asserts, “a power of attorney for health care allows a person living with dementia to name an agent to make health care-related decisions on his or her behalf when he or she is incapable of doing so. . . For a person in the late stage of dementia, the health care agent may also make end-of-life decisions (medical directives), such as providing nutrition through a feeding tube or giving do-not-resuscitate instructions to health care providers” (alz.org).
The last will and testament is different than a “living will.” This is a document that outlines an executor of estate who will manage the estate after death; and beneficiaries, who will receive any assets from the estate after death. The Alzheimer’s Association reveals, “The executor named in the will has no legal authority while the person with dementia is living; the executor’s authority takes effect when the person dies” (alz.org). All copies of documents should be distributed to those persons named to fulfill an appointed duty, attorneys assisting with the living and post life documents, medical facilities caring for the person with dementia and spouses and family members. This ensures all parties are cognizant of the living and after-life plan.
It is important to note, as long as the person with dementia has the legal and mental capacity to make decisions for themselves, they are afforded that right. They can change, modify, or amend the documents as they see fit. It is also worthy to note that if a person with dementia makes changes or amendments to their documents and is thought to not be of sound mind and legal capacity, those changes could be challenged later, making it difficult to fulfill the wishes of the individual. If a will is challenged based on testamentary capacity, a beneficiary has challenged the validity of the document before a court based on the testor’s lack of capacity to endorse or change a will. The FindLaw team warns, “Adults are presumed to have testamentary capacity. When litigation arises that challenges an adult’s testamentary capacity, it is usually on the basis that the adult has senility, dementia, insanity, was under the influence of a substance, or in some other way lacked the mental capacity to form a will. Basically, to challenge a will based on mental capacity, you must show that the testator (the person who created the will) did not understand the consequences of making the will at the time of the will’s creation” (findlaw.com). This confirms that a power of attorney and legal attorney be included in any changes to protect the patient’s wishes.
In conclusion, this is a very difficult circumstance for all parties involved and being able to protect all assets of the dementia patient. It is important to understand the laws in the state you live in and have all documents with an attorney and the POA. Dementia and Alzheimer’s is a devastating disease and many of those patients are taken advantage of. Don’t let this happen to those you love.
