Important Documents to Have in Place Before Dementia Sets In
Aug. 30, 2022
You may be familiar with the acknowledgment required of a last will and testament that the maker is “of sound mind.” It makes sense that someone lacking the mental capacity to make decisions also lacks the legal capacity to do so. Dementia presents many barriers in this regard. According to the Alzheimer’s Association, more than six million Americans currently live with Alzheimer’s. That number is expected to more than double in the next 25 years.
Once dementia sets in, it is too late to execute any legal documents, including those used in estate planning. That is why Attorney Robert Taylor-Manning works with clients in Kennewick, Walla Walla, Richland, and Pasco, Washington, to plan for the possibility that their estate plan will be needed perhaps long before they die. Northwest Elder Law Center also proudly serves clients in Portland, Oregon, and the surrounding areas.
How Does Dementia Affect Legal Capacity?
Alzheimer’s and other dementia cause cognitive impairment that renders someone unable to understand the consequences of a decision. They are therefore unable to make rational and informed decisions, which means they lack the legal capacity to sign their name to execute a legal document, even though they are an adult over 18.
Dementia does not necessarily render someone legally incapacitated. It is a progressive disease which, at some point in time, will impair their ability to acquire information, process it, and fully understand the information and the consequences of any legal action.
If you or a loved one has been diagnosed with Alzheimer’s or other dementia, that alone does not make you unable to execute legal documents. However, once your cognitive impairment reaches a certain point, you will lose your legal capacity to do so. That is why it is so important to undertake the task of legal planning now, creating and executing documents in anticipation of the inevitable.
What Documents Should I Have in Place?
These estate planning documents should be executed by virtually every adult. Although most Americans put off creating estate plans, those suffering from the early stages of dementia should have a unique sense of urgency.
You should also know that although you sign these documents now, they do not go into effect until a signal event occurs, such as a diagnosis of cognitive impairment that eliminates your legal capacity, your need for others to manage your healthcare, business, and personal life, or upon your death. In the meantime, you can make changes to these documents as circumstances in your life change, such as marriage or divorce, the birth or death of children, or the launch or closure of a business, so long as you have the legal capacity to make them.
Following are the documents you may want to execute before dementia sets in:
Powers of attorney allow you to authorize someone to make certain decisions on your behalf. Such powers of attorney may be limited to a single activity, such as selling a piece of real estate, or broad, such as signing your annual income tax returns or managing your investments. You should make sure that any powers of attorney you need to authorize to enable someone to make decisions for you once you are unable to make your own decisions or after you die are durable powers of attorney. Otherwise, the powers you grant end upon your incapacitation or death.
A durable power of attorney for healthcare is extremely important if you are diagnosed with dementia. With it, you will appoint the person or persons you trust to make healthcare decisions for you when you are no longer able to for yourself.
A living will is also referred to as an advance healthcare directive. In it, you express your wishes regarding lifesaving and end-of-life medical treatment, such as whether you want to receive blood transfusions or be kept alive when you are unable to breathe or eat on your own.
The court is the entity that names a conservator or guardian to make decisions regarding your care and property when you lack the mental capacity to do so. However, you can express your preference for who serves in this role in a durable power of attorney.
A standard will allows you to express your wishes regarding the payment of debts and distribution of assets upon your death. If you die without one, referred to as “intestate,” the court will make all decisions and distribute your estate according to the laws of intestate succession. You name an executor or personal representative in your will who oversees the administration of your estate. You also decide who inherits from your estate.
A living trust allows you to transfer your personal assets to the ownership of a trust. Those assets are managed by the trustee for the beneficiaries to the trust. You name the trustee, successor trustee, and the beneficiaries of the trust.
Work With an Experienced Estate Planning Attorney
Although there may be an inherent sense of urgency in executing estate planning documents if you are diagnosed with dementia, the process should not be rushed. Estate planning attorney Robert Taylor-Manning will fully explain how each document works, provide legal guidance, and ensure they are enforceable in court.
If you live in Kennewick, Walla Walla, Richland, or Pasco, Washington, or Portland, Oregon, call Northwest Elder Law Center today to begin creating your estate plan.