More than five million Americans suffer from dementia, and that number is projected to increase to more than seven million by 2025 as people live longer, healthier lives. But with this increased lifespan comes increased risk of some serious illnesses, including Alzheimer’s disease. About half those who live past age 85 will suffer from the disease, according to the Alzheimer’s Association.
People with dementia eventually lose memory, cognitive ability, and even language. If you or a loved one is concerned about the prospect of impairment, you should know that it is very important to get legal documents in place before dementia makes it impossible for you to understand the issues and make informed decisions. You cannot make a legally valid will, power of attorney, or other legal document unless you are of sound mind. This stipulations requires that you must understand your family circumstances, act of your own free will, and understand the consequences of your choices.
Legal capacity is the ability to understand and appreciate the consequences of one’s actions and to make rational decisions. In most cases, if a person with dementia is able to understand the meaning and importance of a given legal document, he or she likely has the legal capacity to execute (to carry out by signing) it.
If the person in question 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.
Before a person with dementia signs a legal document:
- Discuss the document. Make sure that the person understands the document, the consequences of signing it and what he or she is being asked to do.
- Ask for medical advice. If you have concerns about the person’s ability to understand, a doctor will be able to help determine the level of his or her mental capacity.
- Assess existing legal documents. Even if a living will, trust and power of attorney were completed in the past, it’s important to review these documents for any changes and update as necessary.
Making legal plans for the future 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.
Early planning allows the person with dementia to be involved and express his or her wishes for future care and decisions. This eliminates guesswork for families, and allows for the person with dementia to designate decision makers on his or her behalf. Early planning also allows time to work through the complex legal and financial issues that are involved in long-term care.
Legal planning should include:
- Preparing for long-term care and health care needs.
- Making arrangements for finances and property.
- Naming another person to make decisions on behalf of the person with dementia.
When people with dementia no longer have the mental capacity to understand what signing a legal document means and what its implications are, it is more difficult to set up legal arrangements to make decisions for them. Guardianship is a legal arrangement that allows caregivers to make financial, healthcare, and other important decisions on behalf of loved ones who can no longer make decisions as a result of disability, incapacity, or mental illness.
Seeking guardianship can be a complicated and frustrating process, as it usually involves legal proceedings to establish that the individual is indeed incapable of making decisions for him/herself. Many things can go wrong and cause the case to take longer or be dismissed altogether. Consider obtaining a lawyer who is familiar with the laws of the state in which the person with dementia resides. In general, guardianship proceedings follow this general format:
- The caregiver or another individual (called the petitioner) files a petition to declare the incompetency of the person with dementia to the Superior Court clerk for the county.
- The clerk may require documentation from a doctor, social worker, psychiatrist, and/or another healthcare worker in order to establish whether a hearing is needed.
- The sheriff’s office will serve a notice of the hearing to the person with dementia and the person filing the petition must also make sure that all family members are notified.
- An attorney may be appointed to represent the person with dementia. The hearing will allow any objections to, or evidence for and against, declaring the person incompetent.
- The clerk or a jury will look at the evidence and make a decision on whether or not the person is incompetent and then he/she will hear evidence and make a decision on who should serve as guardian(s) for the person.
An advance directive is a legal document that explains how you want medical decisions about you to be made if you cannot make the decisions yourself. An advance directive lets your health care team and loved ones know what kind of health care you want, or who you want to make decisions for you when you can’t. An advance directive can help you think ahead of time about what kind of care you want. It may help guide your loved ones and health care team in making clear decisions about your health care when you can’t do it yourself.
Durable Power of Attorney (POA)
A Durable Power of Attorney is a document used to assign someone (an agent) to act on your behalf regarding financial matters. Durable POAs are specifically active when you dictate them to be so, which may be while you are well and/or if you become incapacitated. You can decide exactly what financial matters you want your agent to be responsible for which may be everything or limited to specific financial obligations.
Wills and Living Trusts
The best way to have your wishes legally recorded is to prepare a will or living trust. These estate planning documents should always be up-to-date with your current wishes and life situation.
A will allows you to leave assets behind to beneficiaries of your choice, and also names an executor to carry out your wishes on your behalf if you pass away. However, a will must be submitted to your county’s probate court when you pass away.
A living trust is the tool our attorneys recommend to act as a “safe” for your properties and accounts. One of the many benefits of a living trust is that it allows your assets to bypass the probate process.
Even better, a living trust allows you to name trustees who will carry out your wishes when the time comes. For example, you can control when and how money is distributed to your beneficiaries by leaving these instructions in the trust for your trustee(s) to carry out.
Update the Beneficiary Designations on All Accounts and Policies
Certain types of accounts and policies ask you to name a beneficiary to receive the funds or benefits in the event of your death. Be sure to update your beneficiary designations on these accounts to reflect your current preferences and life situation. Be sure to select a primary beneficiary, as well as an alternate beneficiary who would inherit should your primary beneficiary be unable or unwilling to inherit.
- Life insurance policies
- Investment accounts
- Retirement accounts
- Payable-on-death (POD) accounts
Do You Need an Attorney for Help with Probate Issues?
A skilled and knowledgeable probate attorney will make the probate process easier and run much more smoothly. Timing is incredibly important, and state laws vary widely. A probate attorney can help you understand your state’s laws, and will ensure all deadlines are met. Intestate estates and contested wills could especially benefit from the assistance of an experienced probate attorney.
If you would like some guidance as you go through the process, a probate lawyer can help. To schedule a meeting with an attorney from Olson Probate, please call 714-847-2500.