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When an older adult receives a diagnosis for a chronic and degenerative illness, it can often lead them to consider setting their affairs in order. But estate planning for Alzheimer’s and dementia patients has some complications you should consider before signing a Will to make sure their last wishes are followed after their death.
As they age, older adults become more susceptible to degenerative diseases that can affect their bodies – including cancer or osteoarthritis – as well as their minds. Chronic and degenerative conditions such as Alzheimer’s disease or dementia can be especially difficult on both the elders diagnosed with the disease and their loved ones trying to care for them.
Learning about a loved one’s Alzheimer’s or dementia diagnosis should move estate planning to the top of your priority list. This is because as these degenerative diseases progress, the patient will find it harder to make the decisions necessary to protect their interests and designate the people they want responsible for their care.
As Alzheimer’s and dementia progress, they interfere with patients’ ability to understand and interact with the world around them. Legal capacity is the “sound mind” part of the old phrase “being of sound mind and body.” It means the person has the mental ability to make legal decisions for themselves. A person’s legal capacity can come and go as symptoms progress. The relevant period will always be measured at the point of the legal action taken. In the context of estate planning, that means when the person executes their estate planning documents.
When it comes to degenerative diseases like Alzheimer’s and dementia, the earlier the estate plan is completed, the less question there will be about whether your loved one had the legal capacity to execute their estate plan, and the less likely you are to face a will challenge for lack of capacity or undue influence.
If your loved one’s Alzheimer’s or dementia has already progressed to the point that they are no longer legally competent, they will not be able to execute a valid Last Will and Testament, or any other estate planning documents. They are also not able to enter into new contracts or generally make decisions about their health or well-being. If your loved one has not executed an estate plan at that point, you may need to file a petition with the Florida Probate Court to appoint a conservator to handle your loved one’s financial affairs, or a guardian to make decisions on their behalf.
Everyone’s estate planning needs are different. However, there are some estate planning tools that work especially well in protecting an elderly loved one navigating an Alzheimer’s disease or dementia diagnosis:
A power of attorney allows a person to designate one or more people they trust to make decisions for them and handle their affairs when they are unable to do so themselves. This includes:
A durable power of attorney is a document that gives the named individual authority to make decisions regarding the grantor’s finances and property. A DPOA commonly allows the person designated as the power of attorney to:
A healthcare surrogate can make decisions about your medical care. The important thing about these documents is that they continue to be valid after you are medically incapacitated, so there is no interruption in care (or payment for that care) as your medical condition progresses.
A living will, also called a health care directive, allows you to make medical decisions about your care during your final illness in advance. It can provide instructions for your medical providers and make it easier for your healthcare surrogate to make hard choices on your behalf. It also becomes legally enforceable when you become “physically or mentally unable to communicate a willful and knowing health care decision.” This ensures that you have control over your healthcare at every stage of your treatment.
A revocable living trust is an estate planning document that allows you to create a legal entity funded with your assets during your own lifetime. While you are alive and well, you can act as the trustee for the trust, and use its assets as you see fit. However, when you become incapacitated, your duties as trustee will be automatically transferred to a successor trustee, who can take over administering the trust and managing your financial assets, even after you pass away. This provides your beneficiaries uninterrupted access to your estate assets without the need for probate court involvement.
A Last Will and Testament is at the heart of almost every estate plan. It directs what should happen to your assets after your death, and names a personal representative to be in charge of carrying out your last wishes. Unless every asset you own has been transferred into a revocable living trust, you will need a Will to distribute any assets in your own name, and to direct your funeral and burial.
If your loved one has been diagnosed with Alzheimer’s disease or dementia, there is no time to waste getting their affairs in order. Harrison Estate Law is happy to help you or your loved one assess legal capacity concerns and complete an estate plan that protects your needs and wishes. Please contact us online or via email or call 352-559-9828 to schedule a free consultation. If you don’t live close to Gainesville, we are happy to set up a phone or Zoom call.
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