Caring for a loved one with dementia is a challenge that millions of families undertake each year. As a caregiver, understanding how a dementia diagnosis affects your loved one’s legal decision-making is crucial to ensuring their wishes are honored and that you are providing them with the best possible care.
In this blog, we’ll explore the importance of estate planning, even after a dementia diagnosis, as the best method to ensure the wishes and rights of your loved one are protected.
Understanding Incapacity
Dementia is a progressive condition that affects memory, cognition, and daily functioning. As dementia causes your loved one’s cognitive abilities to decline, there may come a time when they are no longer able to make sound decisions about their finances, healthcare, and overall well-being.
When the effects of dementia make it difficult for a person to understand information and make sound decisions, that person is considered to be incapacitated, which means they can no longer legally make healthcare or financial decisions for themselves. This change in their memory and cognition can be emotionally overwhelming for both your loved one and your whole family, and without proper planning, can require court involvement.
But there’s still some good news. Thoughtful estate planning can ensure that your loved one is cared for by the people they know and trust if they can no longer care for themselves. Even if you’re loved one has already been diagnosed with dementia, it is still possible for them to create a legally-binding estate plan during the early stages of the disease.
Estate Planning In The Early Stages of Dementia
Every adult should create certain legal documents to protect their rights and wishes, and this is no different for a loved one with a dementia diagnosis. It is important to remember that to create a legal document, you must have mental capacity – meaning you need to be fully aware of what you are doing and the consequences of your choices.
Thankfully, a person does not need to constantly be in a state of capacity to create an estate plan. As long as your loved one has the mental capacity at the moment they sign their estate plan documents, the documents will be valid, even if they regress into a state of incapacity afterward.
In the early stages of dementia, and ideally long before any health problems surface, your loved one should create the following estate planning documents:
General Durable Power of Attorney
A General Durable Power of Attorney (POA) is a legal tool that allows your loved one to appoint someone to make financial and legal decisions on their behalf. Their “agent” can write checks, pay bills, maintain their home, and manage their financial assets.
This document becomes especially significant as dementia progresses. Encourage your loved one to designate a trusted individual as their agent while they can still make such decisions.
A Revocable Living Trust
A General Durable Power of Attorney is an important tool, but many financial institutions place constraints on using a POA or don’t acknowledge their authority at all. To ensure your loved one has complete protection of their financial wishes, encourage them to establish a Revocable Living Trust and move their assets into the name of the Trust.
As part of creating a Trust, your loved one will name the person they want to manage their assets, called the Trustee. The Trustee and Power of Attorney are usually the same person, but not always. By having these two estate planning tools in place, you can rest assured that the people your loved one knows and loves will be able to manage their assets for them as their dementia progresses.
Power of Attorney for Healthcare
Similar to a General Durable POA, a Power of Attorney for Healthcare (HPOA) appoints a Healthcare Surrogate, someone who makes medical decisions on behalf of your loved one when they cannot do so for themselves. Discussing and establishing a Healthcare Power of Attorney early on allows your loved one to express their medical preferences and ensures their wishes are honored.
Their Power of Attorney for Healthcare should also include a Declaration to Physicians, also called a Living Will, that outlines their desires regarding medical treatment, life support, and end-of-life care. Creating a Declaration to Physicians and discussing their wishes with you ensures that their preferences regarding life-sustaining treatment, resuscitation, and other medical interventions are documented and respected.
Plan As Early as Possible
One of the most crucial steps in preparing for the challenges of dementia is to help your loved one complete their estate planning while they still have the capacity to do so. Waiting until the later stages of the disease can limit their options and increase stress for everyone involved.
By addressing legal matters early on, you can ensure your loved one’s wishes are respected, and their affairs are managed as intended by the people they trust, without needing court involvement.
If you have a loved one with more advanced dementia, check back here next week as we explore late-stage estate planning options and methods to avoid family and legal conflict over your loved one’s care.
We would be honored to be there for your family. Schedule a free 15-minute discovery call to get started by emailing [email protected] or calling (859) 344-6742.
This article is a service of Ruberg Law PLLC. We don’t just draft documents; we ensure you make informed, empowered decisions about life and death for yourself and the people you love. That’s why we offer a Family Wealth Planning Session™. During the session, you will get more financially organized than you’ve ever been before and make all the best choices for the people you love. You can begin by calling our office today to schedule a Family Wealth Planning Session and mention this article to find out how to get this valuable session at no charge.
This material was created for educational and informational purposes only and is not intended as ERISA, tax, legal, or investment advice. If you seek legal advice specific to your needs, such advice services must be obtained independently, separate from this educational material.
