By: Jose Roman
Estate planning is an essential process for anyone, but it becomes even more critical for individuals facing disabilities such as dementia or Alzheimer's disease. These conditions can gradually impair a person's cognitive abilities and decision-making capacity, making it crucial to plan ahead to protect their interests and ensure their wishes are honored. In this blog post, we will explore some key considerations for estate planning when dealing with dementia or Alzheimer's, highlighting the importance of early action and collaboration with professionals.
Start the planning process early
Early intervention is crucial when it comes to estate planning for individuals with dementia or Alzheimer's. It's important to begin the process as soon as possible after diagnosis, while the person affected still possesses legal capacity to make decisions. This allows them to actively participate in planning and express their wishes regarding the distribution of assets, healthcare decisions, and other important matters. If there is any doubt about a family member's ability to make decisions it is a good idea to have them evaluated by one or more medical professionals to determine their mental capacity. It is also important to understand that the mental capacity needed to create something like a Will is not as high as that needed to enter into contracts, such as for the sale of real estate. While a family member with early symptoms of dementia or Alzheimer's may not have the capacity to enter into contracts, they may still have the capacity to create a Will if they do not already have one or need to make a change.
Assign a trusted power of attorney
Designating a power of attorney (POA) is essential for individuals with dementia or Alzheimer's as it ensures that a trusted person can make financial and legal decisions on their behalf. Selecting someone who understands the individual's values and preferences is vital to maintain continuity and protect their best interests. Regular communication and updates with the POA are necessary to ensure their understanding of the person's wishes. It is very important to select the correct person for this role. The agent in a POA is a fiduciary of the principal, meaning they have to always act in the best interests of the principal. When it comes to someone who has dementia or Alzheimer's there is always the increased risk that a bad actor may make financial or legal decisions that will harm the principal or that are made to benefit the agent. Who you choose for this role is one of the most important estate planning decisions you need to make.
Establish a healthcare proxy and advance directives
A healthcare proxy, also known as a durable power of attorney for healthcare, allows individuals to designate someone to make medical decisions when they are no longer capable. It's important to select a healthcare proxy who is knowledgeable about the person's medical history, values, and preferences for treatment. Advanced directives, such as living wills or do-not-resuscitate (DNR) orders, should also be established to provide specific instructions regarding end-of-life care. Both of these documents do not go into affect unless and until the patient is unable to make decisions on their own. Until then doctors have a duty to request how a patient wants to be treated from the patient themself.
Review and update legal documents
Regularly reviewing and updating legal documents such as wills, trusts, and beneficiary designations is crucial, especially as the condition progresses. Changes may be necessary to reflect the individual's current circumstances, asset distribution preferences, and the evolving needs of their beneficiaries. Consulting an experienced estate planning attorney can help ensure that all legal documents are accurate, up to date, and compliant with relevant laws. If someone is already showing early signs of dementia and Alzheimer's this may be your one and only opportunity to establish an effective estate plan. Going back to #2 above it is important who you pick as the agent under a POA because they may have the ability to change your estate plan, even after you yourself lose the mental capacity to do so.
Preserve assets and plan for long-term care
Dementia or Alzheimer's care can be financially burdensome, and planning for long-term care is an essential part of estate planning. Consider exploring options such as long-term care insurance, Medicaid planning, and setting up a trust to protect assets while still providing for the individual's care needs, such as Self-Settled or Third Party funded Special Needs Trusts. An experienced financial planner or elder law attorney can provide valuable guidance and help navigate the complexities of these matters.
Communicate and involve family members
Open and honest communication among family members is vital when planning for the future of someone with dementia or Alzheimer's. Involving all relevant parties, including siblings, children, and other close relatives, can help manage expectations, address concerns, and ensure everyone is working towards a common goal. Regular family meetings or facilitated discussions can be beneficial for everyone involved. When a family member develops dementia or Alzheimer's this can place a heavy burden on the other family members. Open, honest and continued communication along with a properly developed estate plan can ease some of the burdens of this time in your life.
Conclusion
Estate planning for individuals with dementia or Alzheimer's requires careful consideration and proactive measures. By starting the process early, designating trusted individuals through powers of attorney, updating legal documents, planning for long-term care, and involving family members, you can help protect the interests of your loved one and ensure their wishes are carried out. Seeking professional advice from estate planning attorneys, financial planners, and elder law specialists will provide the expertise needed to navigate the complexities of estate planning during these challenging circumstances.
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