Legal Planning for Persons with Dementia

Dementia is a broad term used to describe symptoms of mental impairment among the elderly such as loss of memory, language, motor, visuospatial and decision-making skills. Such conditions are devastating and can cause serious financial, social, and emotional hardships on the elderly patient and their family.

Planning for the future helps patients and their families cope with the disease to some degree. For example, having a financial plan will enable the person with dementia to live with dignity and comfort in their final years.

Putting a plan together should cover – (1) Medi-Cal Planning for Long-term Care and Well-being; (2) Estate Planning or making arrangements for finances and property and;

(3) Naming a Trustee or appointing another person to make decisions on behalf of the person with dementia.

The sooner that a plan is set into motion, the more likely it is for the person with dementia to be involved in the process. 

Here are some suggested steps to get you started:

1. Assess Legal Capacity

Does the patient with dementia have the mental ability to execute a will? This is called “testamentary capacity” and could be challenged in court when it is suspected that the “testator” — the person who signed the will — lacked the mental capacity at the time to execute it.

Consult a medical professional to ascertain the level of mental capacity required for understanding and executing the documents. It also helps to have a lawyer present to help explain to the testator what is being asked of them before signing it or present alternative legal tools such as a Durable Power of Attorney – the process of appointing an agent to make healthcare decisions on their behalf.

2. Prepare the Documents

If your loved one does not have a will, and there are no signs of dementia, you can simply draft one using an online form in anticipation of the future onset of dementia. But if you have a complicated situation, you may need to prepare the following documents and seek legal advice:

  • Itemized list of assets (e.g., bank accounts, contents of safe-deposit boxes, vehicles, real estate), including current value and the individuals listed as owners, account holders and beneficiaries.
  • Copies of all estate planning documents, including wills, trusts and powers of attorney.
  • Copies of all real estate deeds.
  • Copies of recent income tax returns.
  • Life insurance policies, including their cash values.
  • Long-term care insurance policies or benefits booklets.
  • Health insurance policies or benefits booklets.
  • List of names, addresses and telephone numbers of those involved in decision- making, including family members, domestic partners and caregivers, as well as financial planners and/or accountants.

3. Prepare a Cost Evaluation for Daily Assistance

Assess the potential cost of caring for a loved one who suffers from dementia, including the benefits from insurance and/or Medi-Cal programs. By the time your parent is in need of daily assistance, you should have the resources available to support their care.

4. Discuss End-of-Life Wishes

It may be a good idea to start the difficult but important conversation with the dementia patient about their end-of-life wishes in anticipation of their future mental decline. Here are suggested points of discussion and decisions to be made to help the patient and their family prepare for the inevitable –

  • Decide on the doctors and other healthcare providers.
  • Decide on the types of treatments to be administered.
  • Decide on the healthcare facilities.
  • Appoint the Executor: or the person who will manage the estate.
  • Name the Beneficiaries: or the people who will receive the assets in the estate.
  • Appoint the Health Care Agent, and a back-up in the event that the original agent is unable to fulfill their responsibilities.
  • Decide if the Health Care Agent with power of attorney has authority to consent to an autopsy.
  • Decide if the Health Care Agent with power of attorney has authority to refuse or sign a DNR
  • Decide on funeral arrangements

What’s Next?

This resource should not be taken as legal advice. Consult our experts at Crider Law to help with guardianship, disability planning and other legal issues that typically affect the elderly. Schedule your free consultation today.

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