The diagnosis of Alzheimer’s or dementia is often a huge shock to a family. Once the diagnosis is made, however, it is important for you and your loved one to start thinking long term about finances and healthcare. Currently, there is no cure of Alzheimer’s, and the calling card of the disease is increasingly diminished mental capacity. If your loved one is in the early stages of the disease, NOW is the time to begin thinking about and creating important estate planning documents including:
- Durable power of attorney
- Durable power of attorney for healthcare / Advanced directive
- Living will
- Living trust
Understanding the Concept of Incapacity
The term “incapacity” is both a legal and medical term and is also sometimes called “legal incompetence.” According to Legalzoom.com, “to be incapacitated means to lack the mental or physical capacity to sufficiently care for a person or property.”
From a legal standpoint, when a person is considered legally incompetent, they cannot sign legal documents on their own behalf. Every person with Alzheimer’s or dementia will eventually become legally incapacitated as the disease progresses. If they have not created estate planning documents, this could lead to a lot of questions about what care Mom would have wanted or what to do with her finances.
A court will have to appoint a guardian for her who may or may not be the person she would choose for herself!
When Is Someone Incapacitated?
What defines incapacity? Can your mom create estate planning documents or update her current documents when she is in the early stages of Alzheimer’s? What about the middle stage?
This is a difficult question to answer. There are no hard and fast rules as to when someone is incapacitated. It is not as if one day your mother is competent enough to create a new living will and then the next day she will be considered incapacitated. Instead, the general rule is that the person creating legal documents must be able to understand the significance of the document they are signing.
If your mother or loved one has Alzheimer’s or dementia, it is a good idea to meet with an elder law attorney to help determine if he or she is competent enough to sign estate planning documents.
What Documents Do You Need?
Here’s a quick rundown of the primary documents your loved one should consider creating. Now might also be a good time for them to review and update existing documents.
Durable Power of Attorney – This document lets your loved one assign an agent (principal) to make financial and other decisions on their behalf. Usually a spouse, adult child, or healthy sibling can serve in this capacity. An agent through a durable power of attorney can make sure Mom doesn’t give all her money away to a Nigerian prince and can sell or rent the house if Mom moves to a memory care facility. Make sure the power of attorney is “durable” so that it will exist when the individual becomes incapacitated.
Durable Power of Attorney for Health Care – Just like a power of attorney, this document lets your mother assign an agent to make health care decisions for her when she becomes incapacitated. This is really important, because many people with Alzheimer’s have other health conditions, and Alzheimer’s itself will require medical intervention eventually. An agent can make decisions on what type of care your mother gets, which doctors to use, and even which hospitals and medical facilities to use. This also covers hospice and end-of-life care decisions.
Living Will – A living will lets your mother expressly explain what types of medical interventions she wants or does not want if or when she becomes incapacitated. For example, she may request that she not be put on life support or that she be given medication to ease suffering but not to extend life when she becomes incapacitated.
Standard Will / Living Trust – A standard will and a living trust both allow your mom to explain how she wants to divide her assets upon her death. The will and trust also assign an “executor” to manage the estate and divide it among the beneficiaries per the individual’s wishes. These documents can be extremely helpful to the family. Without a will or trust, the entire estate goes through probate court, which is both long and expensive and often leads to family infighting.
Not every person is diagnosed with Alzheimer’s in the early stages, and not every diagnosed individual thinks to create estate planning documents. What happens if your mother becomes legally incompetent but does not have estate planning documents already in place?
If your mother represents a risk to herself, (ex: she lives alone and often forgets to turn the stove off) then you may want to try and seek guardianship over her. Asking for guardianship is a legal procedure that will recognize her incompetence and put her legally under your care. This can be a tricky legal process. You’ll have to show evidence that your mother is incapacitated and that you have the ability to provide care for her.
If you are considering this route, we suggest that you speak with an elder law attorney in your area who can help you put together your case.
Having the Conversation
It can be difficult to speak to your mother or any loved one diagnosed with Alzheimer’s or dementia about estate planning and end-of-life planning, but just keep in mind that things become a whole lot more difficult if your loved one progresses to a state where they become incompetent and don’t have documents. Estate planning is a chance for your loved one to take control of their health care, their estate, and their end-of-life planning while they still can. It can also provide immeasurable relief to the family, especially in the future when a crisis occurs.
Need help speaking about estate planning to your loved one? If you live in the Poway/4S Ranch area of San Diego, come join us for our free caregiver support group each month. Our members are here to listen, provide advice, and share their stories with you.
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Categories: Memory Care