Dementia & Estate Planning

Proper estate planning is essential for every adult American, but especially for those in the early stages of Alzheimer’s disease and other forms of dementia. Action must be taken sooner rather than later if you want to participate in the planning process itself.

While you might not think you are at risk for dementia, one in three adults over the age of 65 develops dementia. Even if you do not experience dementia yourself, the odds are that someone close to you will.

Estate Planning for Seniors without Dementia

Life is fully of uncertainties, and it is a wise practice to create your estate plan before there is any question about whether you have sufficient legal capacity. Still, if you are 65 or older, you might want to include a letter from your primary care physician confirming that you are of sound mind at the time you prepare and sign your legal documents.

Things to discuss with your estate planning counsel include:

• Developing a strategy for long-term care. This includes evaluating your long-term care insurance policy provisions or if you are uninsured, your Medicaid planning options.
• Designating your key decision-makers. You will need to legally appoint someone now to make your personal, health care, and financial decisions, if you are unable to make or communicate them in the future. A health care proxy and a durable power of attorney for financial decisions are key legal documents for every adult American should have.
• Creating or updating your will or revocable trust. Many of us execute these documents then stick them in a drawer and promptly forget about them. This is the time to locate your will or living trust, dust them off, and read them. Like many people, you will likely find that your will or revocable trust is out-of-date. For example, your documents might include a former spouse or contain terms that were appropriate when your children were minors but may not be appropriate now.

Estate Planning for Seniors in the Early Stages of Dementia

Even after a diagnosis of dementia, you may still prepare or update your estate plan. However, the estate planning process must carefully assess and memorialize your mental capacity. As noted above, it is always a good idea to have a medical doctor evaluate and certify in writing your ability to understand the content of your estate planning documents and the consequences of signing them.

The medical evaluation and certification of mental capacity should be kept with your important legal papers, including your estate planning documents.

What to Do When a Person with Dementia Lacks Mental Capacity

We do not always have the luxury of knowing that there is a “problem” before there is a problem, especially when someone close to us experiences diminished mental capacity. Unfortunately, at some point, someone loses the legal capacity to participate in preparing and signing legal documents. In hindsight, loved ones should have recognized the warning signs of dementia. Nevertheless, whether due to denial or the business of daily life, no action was taken to create an appropriate estate plan.

What then?

Suppose you find yourself in a situation with a close loved one who did not execute a power of attorney or health care proxy and it is too late to implement one? In those cases, you may need to commence a guardianship proceeding and petition the court to allow you to serve as their guardian/conservator. The guardianship appointment can be both time-consuming and expensive so planning ahead to avoid this situation is paramount.  If, however, your loved one did not do advanced planning then a guardianship proceeding may be your only option. Once a guardian is appointed, they can make personal, health care, and financial decisions for your incapacitated loved one under the court's ongoing supervision.

Final Thoughts

As with most things in life, prevention is always more prudent than the cure. It is the same in the face of an Alzheimer’s or a dementia diagnosis. If you have not taken care of your legal business, then there is no time like the present. While you are at it, share this advice with those near and dear to you.

Contact us today and we can review your current plan, explore your options and discuss your needs and desires and make sure your wishes are accomplished.

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