Legal Plans: Assisting A Person With Dementia In Planning For The Future
LEGAL PLANSCONSIDERATIONS FOR HELPING A PERSONLIVING WITH DEMENTIA PLAN FOR THE FUTURE
PLAN FOR THE FUTUREWhile it’s important for everyone to planfor the future, legal plans are especiallyvital for a person diagnosed with dementia.The sooner these plans are put in place, themore likely it is that the person living withdementia will be able to participate inthe process.Legal planning includes:» Preparing for long-term care andhealth care needs.» Making arrangements for financesand property.» Naming another person to makedecisions on behalf of the personwith dementia.1
CONTENTS1. Legal capacity .p.22. Legal documents.p.33. Finding a lawyer .p.74. Meeting with your lawyer .p.85. Terms your lawyer may use .p.10This brochure contains only general information and is not meantto be legal advice. Laws vary by state and are constantly changing.As a result, we make no warranty or guarantee of the accuracy orreliability of the information contained herein. You should consult alawyer before acting on any information contained herein for advicespecific to your situation.1
1.LEGALCAPACITYIn most cases, if a person living with dementia isable to understand the meaning and importanceof a given legal document, he or she likely hasthe legal capacity (the ability to understand theconsequences of his or her actions) to execute(to carry out by signing it).As long as the person has legal capacity, he orshe should take part in legal planning. A lawyercan help determine what level of legal capacity isrequired for a particular document, as it can varyfrom one type of document to another.Before a person living with dementia signs alegal document:» Discuss the document.Make sure that the person understandsthe document, the consequences of signingit and what he or she is being asked to do.» Ask for medical advice.If you have concerns about the person’sability to understand, a doctor will be ableto help determine the level of his or hermental capacity.» Assess existing legal documents.Even if a living will, trust and power ofattorney were completed in the past, it’simportant to review these documents forany changes and update as necessary.2
2.LEGALDOCUMENTSLiving willA living will is a document that expresseshow a person who is physically or mentallyincapacitated wishes to be treated in certainmedical situations.In a living will, the person may state, amongother things, his or her wishes regarding artificiallife support. This document generally comesinto play once a doctor decides that a person isincapacitated and unable to communicate his orher desires regarding life-sustaining treatment.Some states may require a particular form fora living will; in others, it may be drafted by theperson’s attorney. Check local laws.TRAVELING TIPIf a person living with dementia travelsoutside his or her state, it’s a good idea tocheck the local laws of their destination tofind out whether existing legal documentswill be recognized there.3
Power of attorneyA power of attorney document allows a personliving with dementia (the principal) to nameanother individual (an agent or attorney-in-fact)to make financial and other important decisionson his or her behalf once he or she no longercan. Typically, the agent is a spouse, domesticpartner, trusted family member or friend.The agent should be chosen carefully. It’s helpfulfor the principal to have a thorough conversationwith the agent about what the responsibilityentails. In addition, a successor agent (or agents)should be named in the event the original agentis unavailable or unwilling to serve.Power of attorney documents should be writtenso that they are “durable,” meaning they are valideven after the principal is incapacitated and canno longer make his or her own decisions.The person living with dementia maintains theright to make his or her own decisions as long ashe or she has legal capacity. Power of attorneydoes not give the agent the authority to overridethe principal’s decision-making until the personwith dementia no longer has legal capacity.Once the principal is unable to make decisions,the agent is then authorized to manage theprincipal’s income and assets. The agent isresponsible for acting according to the principal’swishes and in the person’s best interest.Power of attorney for health care4
ADVANCE DIRECTIVESAdvance directives are legal documents thatallow a person to document preferencesregarding treatment and care, includingend-of-life wishes.Types of advance directives include:» Durable power of attorney for health care.» Living will.Power of attorney for health careA power of attorney for health care allows aperson living with dementia to name an agent tomake health care-related decisions on his or herbehalf when he or she is incapable of doing so.These decisions include choosing:» Doctors and other health care providers.» Types of treatments.» Care facilities.For a person in the late stage of dementia, thehealth care agent may also make end-of-lifedecisions, such as providing nutrition through afeeding tube or giving do-not-resuscitate (DNR)instructions to health care providers.When the time comes, these decisions canbe difficult for families to make. Help avoiddisagreements and distress by having open andcandid conversations early on so everyone isaware of the end-of-life plans in place.WillA will — which is different than a living will — is adocument identifying whom a person has chosen as:» Executor: The person who will managethe estate.» Beneficiaries: The people who will receivethe assets in the estate.5
The executor named in the will has no legalauthority while the person with dementia isliving; the executor’s authority takes effect whenthe person dies.A will cannot be used to communicate health carepreferences, but it can offer peace of mind that aperson’s expressed wishes for his or her estate willbe fulfilled upon death. An individual diagnosed withdementia should have a signed will put in place assoon as possible, while he or she is still able to makedecisions. Be sure to check local laws, as the validityof a will varies state by state.Living trustA living trust is another way for the person livingwith dementia to give instructions for how his orher estate should be handled upon death.Depending on state law and other individualcircumstances, a living trust may allow an estateto avoid probate (the process used by the courtto distribute the property of a person who hasdied). It may or may not provide tax advantages.The person who creates the trust (a grantor ortrustor) appoints him- or herself (and possiblysomeone else) as trustee(s). If a single trusteeis designated, the trust document should alsospecify a successor trustee, who will take overif the initial trustee is unable to serve due toincapacity or other reasons. A trustee is usuallya person but may also be an institution, such asa bank. The trustee is responsible for carefullymanaging the assets of the trust.For more information on living trusts, consulta specialist, such as an elder law attorney orfinancial adviser.Guardianship/conservatorshipA guardian or conservator is appointed by a courtto make decisions about a person’s care andproperty. Guardianship is generally considered6
when a person with dementia is no longer ableto provide for his or her own care, and either thefamily is unable to agree upon the type of careneeded or there is no family.Acquiring guardianship takes time. It involvesenlisting the help of an attorney and testifyingin court for guardianship proceedings. Not onlydoes a guardian make health care and financialdecisions, he or she also makes sure the person’sday-to-day needs for safety, food, shelter andcare are met. Guardians are responsible to andsupervised by the court.The rules surrounding guardianship vary bystate. Any family considering guardianship orconservatorship should consult with an elder careattorney familiar with the process in that state.3.FINDINGA LAWYERMany legal forms, such as a power of attorneyand living will, can be completed withoutprofessional help. However, if you have a complexsituation or questions, it’s a good idea to seeklegal advice from an attorney specializing in elderlaw. Elder law focuses on guardianship, disabilityplanning and other legal issues that typicallyaffect older adults.» If you have a family attorney, he or she maybe able to refer you to an elder law attorney.» Call the free Alzheimer’s Association 24/7Helpline (800.272.3900) for a list of elderlaw attorneys in your area.» Use Alzheimer’s Association CommunityResource Finder (alz.org/CRF) to locatea legal expert.» Contact your local Area Agency on Aging oruse their Eldercare Locator (eldercare.gov;800.677.1116) to find free legal resources.7
4.MEETING WITHYOUR LAWYERPrepare to meet with your lawyer by gatheringall of the documents related to the assets ofthe person living with dementia.WHAT TO BRING Itemized list of assets (e.g., bankaccounts, contents of safe-depositboxes, vehicles, real estate), includingcurrent value and the individualslisted as owners, account holders andbeneficiaries. Copies of all estate planning documents,including wills, trusts and powers ofattorney. Copies of all real estate deeds. Copies of recent income tax returns. Life insurance policies, including theircash values. Long-term care insurance policies orbenefits booklets. Health insurance policies or benefitsbooklets. List of names, addresses and telephonenumbers of those involved in decisionmaking, including family members,domestic partners and caregivers, as wellas financial planners and/or accountants.8
What to discuss with your lawyerBe sure to talk to your lawyer about the followingkey issues, as well as any other concerns you have:» Options for health care and long-termcare decision-making for the person livingwith dementia.» Options for managing the individual’spersonal care and property.» Possible coverage of long-term careservices, including what is provided byMedicare, Medicaid, veterans benefits andother long-term care insurance.KNOW YOUR LOCAL LAWSCouples who are not in legally recognizedrelationships are especially vulnerableto limitations in making decisions foreach other, and may be unable to obtaininformation about a partner’s health statusif legal documents are not completed. Makesure you understand your state’s laws.9
5.TERMS YOURLAWYER MAY USEAgent: The person given legal authority to makefinancial decisions for the person with dementia(principal) through a power of attorney document;usually a trusted family member, domestic partneror friend; see also health care agent.Artificial life support: Medical equipment andother technology used to prolong the life of aseriously ill person by sustaining essential bodyfunctions (e.g., breathing).Assets: Personal possessions of value, includingcash, bank accounts, real estate, vehicles andinvestments.Beneficiaries: The people named in a will orinsurance policies to receive the estate of theperson with dementia upon his or her death.Conservator: A person appointed by the courtto make decisions on behalf of the person livingwith dementia; referred to as the guardian in somestates.Custody: Legal responsibility for a person.DNR: Do-not-resuscitate; refers to a person’sinstructions that, if his or her heart or breathingstops, the doctor should not try to restart it. ADNR is a medical instruction or order and must beissued by a physician.Domestic partner: An individual who is partof an unmarried heterosexual or homosexualcohabitating couple. Definition may vary accordingto state and/or employer.10
Durable: When a power of attorney document isdurable, it is valid even after the principal can nolonger make his or her own decisions.Execute: To legally sign or carry out a legaldocument.Executor: The person named in a will to managethe estate of the person with dementia upon hisor her death. The executor of a will carries out theinstructions of the deceased as outlined in the will.Grantor: A person who arranges for his or herassets to be transferred to another person orentity; for example, the grantor of the John W.Smith Living Trust is John W. Smith. Also calleda trustor.Guardian: The individual appointed by the courtto make decisions on behalf of the person withdementia; referred to as the conservator in somestates.Health care agent: The person given legalauthority to make health care decisions for theprincipal through a power of attorney for healthcare document; usually a spouse, trusted familymember or friend.Legal capacity: The ability to understand andappreciate the consequences of one’s actionsand make rational decisions.Principal: The individual who chooses anotherperson through a power of attorney document tomake decisions on his or her behalf when they areno longer able.Probate: The process used by the court todistribute the property of the deceased.11
Summons: A notice to appear in court.A summons is delivered to the person withdementia when a petition of guardianship orconservatorship has been filed on his orher behalf.Trustee: The individual or institution chosento manage the trust assets on behalf of thebeneficiaries.Trustor: The person for whom a living trust iscreated; for example, the trustor of the John W.Smith Living Trust is John W. Smith. Also calleda grantor.12
QUICK TIPS FORLEGAL PLANNINGConsider the following as you make plans.» Those named in the power of attorneydocument should have a copy of andaccess to the original document.» The person living with dementia shouldname a successor (backup) agent forpower of attorney in the event that theagent may one day be unable to fulfilltheir responsibilities.» Once a power of attorney for health caredocument and/or a signed living will is inplace, give copies to the person’s healthcare providers.» The person living with dementia shoulddecide if the agent with power of attorneyfor health care has authority to consentto a brain autopsy. This may vary by state.» Consider choosing an attorney or a bankto manage the individual’s estate if theperson lacks a trusted individual with thetime or expertise to do so.» The person living with dementia shoulddiscuss his or her wishes with the chosenpower of attorney to make sure the agentis comfortable carrying them out.13
alz.org/careThe Alzheimer’s and Dementia CaregiverCenter provides reliable information and easyaccess to resources, including:» Alzheimer’s Navigator – Assess yourneeds and create customized action plansof information and support.» Community Resource Finder – Find localresources.» ALZConnected – Connect with othercaregivers who can relate to your situation.alz.org/educationFree online workshop:» Legal and Financial Planning for Alzheimer’s800.272.390024/7 Helpline – Available all day, every day.The Alzheimer’s Association is the leading voluntary healthorganization in Alzheimer’s care, support and research.Our mission is to eliminate Alzheimer’s disease throughthe advancement of research; to provide and enhancecare and support for all affected; and to reduce the riskof dementia through the promotion of brain health.Our vision is a world without Alzheimer’s disease .800.272.3900 alz.org This is an official publication of the Alzheimer’s Association but may be distributedby unaffiliated organizations and individuals. Such distribution does not constitutean endorsement of these parties or their activities by the Alzheimer’s Association. 2018 Alzheimer’s Association . All rights reserved.Rev.May18770-10-0025
LEGAL CAPACITY In most cases, if a person living with dementia is able to understand the meaning and importance of a given legal document, he or she likely has the legal capacity (the ability to understand the consequences of his or her actions) to execute (to carry out by signing it). As long as the person has legal capacity, he or
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