Elder Law, Estate Planning, & Dementia
Planning for the future is important for every adult, but it is essential for those who are at risk for developing Alzheimer’s Disease or other forms of Dementia. While you might not think you are at risk for Alzheimer’s Disease, one in three adults over the age of 65 develops some form Dementia. Even if you do not experience Dementia yourself, the odds are that someone close to you will. Action must be taken sooner rather than later, if you want to participate in the estate planning process yourself.
Estate Planning When You Are Healthy
Knowing the numbers, it would be a wise decision to create your estate plan before there is any question about whether you have sufficient legal capacity. Still, if you are 65 or older, you might want to include a letter from your primary care physician confirming that you are of sound mind at the time you prepare and sign your legal documents.
Things to discuss with your elder law estate planning attorney include:
- Developing a strategy for long-term care. This includes evaluating your long-term care insurance policy provisions and, especially if you are uninsured, your Medicaid planning options.
- Designating your key decision-makers. You will need to legally appoint someone now to make your personal, health care, and financial decisions, if you are unable to make or communicate them in the future. A Living Will (Directive to Physicians) with a Power of Attorney for Health Care and a Durable Financial Power of Attorney are key legal documents for every adult.
- Creating or updating your will and/or living trust. Many of us execute these legal instruments then stick them in a drawer and promptly forget about them. We simply set it and forget it. Now is the time to locate your will or living trust, dust them off and read them. Like many people, you will likely find that your will or living trust is out-of-date. For example, your documents might include a former spouse or contain terms that were appropriate when you had young children but no longer apply.
Estate Planning in the Early Stages of Dementia
Even after a diagnosis of Alzheimer’s Disease or other Dementia, there is still a period of time where you can determine or update your estate plan. Your ability to do so will diminish over time, however, so it’s essential that you talk with your elder law estate planning attorney as soon as possible. As noted above, it is always a good idea to have a medical doctor evaluate and certify in writing your ability to understand the content of your estate planning documents and the consequences of signing them.
An elder law estate planning attorney can also help you plan in case Medicaid, or Veteran’s Pension, is needed in the future to pay for long-term care. These programs have a 5-year and 3-year look-back period (respectively), meaning that any financial transfers during those look-back periods may result in disqualification from these programs.
The medical evaluation and certification of mental capacity should be kept with your important legal papers, including your estate planning documents.
The Costs of Putting it Off
Sometimes estate planning is delayed to the point where the individual with Dementia can no longer actively participate in the process, or sign legal documents.
If you find yourself in this situation with a close loved one, you will need to initiate a probate process to be formally appointed as a guardian/conservator by the court. Once appointed, you will be able to make personal, health care and financial decisions for your incapacitated loved one under the ongoing supervision of the court. You will need the assistance of an attorney to process this legal action, which can be time consuming, emotionally distressing, and expensive.
Final Thoughts
As with most things in life, an ounce of prevention is worth a pound of cure. It is the same in the face of an Alzheimer’s Disease or other Dementia diagnosis. If your legal documents and estate plan are not up to date, then there is no time like the present. While you are at it, share this advice with those near and dear to you. You will find helpful links and resources on our website, www.McNair-DallasLaw.com.
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