Dementia is a serious illness that causes the loss of cognitive functioning — reasoning, thinking, and remembering — to such an extent that it interferes with a patient’s daily life and activities.
Dementia ranges in severity from the mildest stage, when it is just beginning to affect a person’s functioning, to the most severe stage, when the patient must depend completely on others for basic activities of daily living, such as feeding themself. The most common form of dementia is known as Alzheimer’s disease.
Families and caregivers of a loved one with dementia face many challenges when providing for their loved one. One of those will be making legal plans for the loved one. Because people with dementia may no longer be able to make their own medical, financial, and legal decisions, the family needs to make plans to protect them and carry out their wishes.
When Should I Begin Making Legal Plans for My Loved One with Dementia?
Legal plans must be made as soon as possible after a diagnosis of dementia. In this way, the patient can express their desires regarding decisions affecting their medical care and estate planning. If you postpone making the plans, you may never know the patient’s desires for their care.
In addition to making medical care and estate planning decisions, the person will also be able to designate the individuals to make decisions on their behalf once they can no longer make them on their own. The legal planning process involves three basic factors:
- Planning for their health care, including long-term care needs
- Planning for overseeing and management of the person’s finances and property
- Choosing someone to make decisions on behalf of the individual for all other needs
One step is to ask them to make a power of attorney. A power of attorney is a legal document that gives someone they trust, who they believe will comply with their wishes, the right and power to make decisions on their behalf.
Thus, it is in the best interests to begin making legal plans for an individual at the onset of their diagnosis so that they may be a participant in deciding their own long-term care. Further, planning for your loved one with dementia will make signing legal documents and the entire process much easier.
Are Persons with Dementia Able to Sign Legal Documents?
Sometimes. For a person with dementia to sign a legal document, it must first be determined that they have the legal capacity to do so. Legal capacity refers to the ability to comprehend and appreciate the results of their actions and make reasonable decisions. Before having a person with dementia sign and execute any legal document, it is advisable to talk with the person and discover whether they comprehend the document they are signing.
After talking and explaining the document to the person, if you are still unsure about the person’s legal, mental capacity, it is best to consult a physician who can help you determine their mental and legal capacity level.
In making legal plans for someone with dementia, you should locate any existing legal documents. If the person has any living wills, trusts, or powers of attorney previously executed, you should discover whether the person remembers having signed them and if they still agree with their provisions. You should review the existing documents and consult with the person, as it may be time to review them and make any needed edits or updates.
If the loved one’s dementia has progressed too far for them to make new legal documents, then the older ones will stand as valid.
Who Should Be Involved in the Process of Making Legal Plans?
As you may know, due to the effect of dementia on an individual’s cognitive function, the individual may not be able to handle the legal planning process independently completely. Legal planning for persons with dementia usually requires the assistance of the affected individual’s family, especially as the disease progresses.
The following list contains individuals that may be involved in the legal planning process:
- The Individual: This may seem obvious, but the first person who should be involved in making legal plans is the individual. As the disease progresses, the individual should still be continually consulted when appropriate to ensure that all planning is aligned with their wishes
- The Individual’s Spouse: If the individual is married, the spouse should be a part of the legal planning process. This is especially true in regard to the estate planning process, as both parties typically own the assets in the estate
- The Individual’s Children: Children should be involved in the legal planning process, as they often have the best interests of their parents in mind and can help keep the legal planning process in conformity with their parents’ desires
- Lawyer: If the individual has a lawyer (which is highly recommended), then the lawyer should be a part of the process. An attorney will be able to consult the all individuals involved and make sure that all the documents executed are valid
- Medical Team: The medical team should be consulted concerning the person’s current mental capacity and the prognosis for the future
- Other Persons: Other persons that may be involved include close friends or relatives who may have insight as to the individual’s wishes. This is especially relevant if the individual is unmarried, childless or if the close friends are to be named as trustee or executor
What is the Legal Process for Planning for Health Care and Long Term Care?
As mentioned earlier, the person should sign a power of attorney if they are mentally able to do so. The person they want to represent them cannot make the decisions without one. If the agent named in the power of attorney is unavailable, it is a good idea to appoint a successor agent.
Upon signing a power of attorney that covers health care or a living will, copies of the documents should be provided to the person’s health care providers so that they know who can make decisions on the individual’s behalf.
Another issue is whether or not the individual wishes to sign a “Do Not Resuscitate” Order (DNR). If they wish to have a DNR, then they must go through the proper paperwork and inform their loved ones, including the person named in their power of attorney and their medical team, that this wish must be enforced.
It is important to explore various options for health care, long-term care, and coverage offered by Medicare, Medicaid, veterans’ benefits (if applicable), and other types of insurance available.
Ongoing decisions will need to be made regarding the person’s personal care and property.
Should I Hire an Attorney If I am Making Legal Plans for Someone with Dementia?
If you or someone you know has been diagnosed with dementia, it is in your best interests to consult an experienced and well-qualified estate planning attorney who can assist you with making decisions regarding health care, long-term care, and managing the person’s estate.
As you can see, the legal planning process can be complicated, but an attorney can help guide you through the entire process and ensure that all documentation is present and validly executed. Moreover, should a arise, the attorney can represent you, the patient, or both of you to resolve the problem successfully.
