Dementia is a disease that slowly degrades the mental functions and capacity of its victims. Persons with dementia do not only suffer short-and-long term memory loss; they also lose the ability to reason, understand, and carry out basic mental operations. It is a difficult condition to live with because it comes on slowly and the person with it tends to be unaware that they are being affected by it.
If you are the relative or caretaker of someone with dementia, it is important to help them establish an estate plan now while they are still relatively clear-headed and healthy. The sooner such plans are put into place, the more likely it is that your loved one will have their wishes honored when they enter the final stages of the disease.
You should contact an estate planning lawyer. They specialize in these matters and will help you formulate a detailed, thorough, and legally sound plan. The planning should include:
- Future health needs
- Financial arrangements
- Naming an agent to make decisions when they can do so no longer
As long as your loved one can read and understand the documents presented to them, they can make decisions regarding these matters. One of the first things a lawyer will do is determine their fitness to carry out the planning. In doing so, they will need to discuss all documents, ensure that the person understands the documents and the consequences of signing them, and ask for medical advice when necessary.
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Estate Planning Documents
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Here are some of the documents that the attorney will help your loved one draw up and sign:
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1. A will
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A will is a document that names an individual to be executor; it also names beneficiaries. The provisions of a will go into effect upon the death of the person who made it.
An executor is responsible for managing the estate and the distribution and division of assets and property. The beneficiaries are the people who get the assets upon the passing of the will maker. It is important to note that an executor has no legal authority to override the decisions of the person with dementia while they live.
A will does not stipulate health care choices, but it can offer peace of mind to the will maker. It will allow them to set out their intentions for who is to get what once they pass. An individual diagnosed with dementia should make a immediately. There is no time to lose.
Laws regarding wills vary by state. Your attorney can help you draw up a will that conforms to the laws of your state.
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2. Living trust
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A person suffering from dementia can also give instructions through a living trust. A trust may provide tax advantages to the beneficiaries of it. One of the best benefits of a trust is that it ensures that the estate will avoid being thrown into a long and difficult probate process.
The person who creates the trust makes themselves a trustee. They should also appoints someone to succeed them should they ever be in a state that makes them unable to serve. A successor trustee can be a relative, friend, or attorney. It can also be a bank, church, or other institution. The trustee is responsible for managing the assets of the trust and ensuring that the beneficiaries get what they are supposed to.
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3. Living will
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A living will expresses the medical treatment that a person who is physically or mentally incapacitated wants to receive in certain situations. If your loved one gets to the point of being able to survive only on life support, they can ask not to be put on such a machine in their will.
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4. Power of attorney
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A person with dementia can name another person (a relative, friend, or attorney) to make financial and other important decisions on their behalf once they have lost the ability to do so. The person designated should be chosen with care and circumspection. It is important for the person with dementia to have an in-depth conversation with the person they give power attorney to. The latter should understand their duties and responsibilities before they agree to this arrangement. A successor should also be named in case the original person is unable or unwilling to service.
Power of attorney documents are written so that they are valid after the person with dementia is unable to make their own decisions.
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5. Guardianship/Conservatorship
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The court can appoint a guardian or conservator when a person’s dementia reaches the point that they can no longer provide for their own care. Having a guardian appointed takes time. The attorney of the person suffering from dementia must testify and the court must consider other evidence that is brought before it.
A guardian gets to make health care and financial decisions. They are also responsible for ensuring that the day-to-day needs of the person with dementia are met. Such persons are supervised by the court. However, this is no guarantee that they will be diligent, attentive, and effective in their job. It is important for your loved one to feel comfortable with the person that watches over them in their illness. Creating an estate plan now, with all the required wills, trusts, and powers of attorney, will help your loved one avoid this kind of appointment.
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Finding the Right Lawyer
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You must find the right lawyer to draw up your estate plan. The lawyer you choose should have in-depth knowledge of all state laws relating to dementia and estate planning. They should provide your loved one with options for future health care decision making and the distribution and management of their property.
The estate planning lawyer you hire should also give sound advice on the how to choose trustees and named persons in powers of attorney. The person suffering from dementia should have the comfort of knowing that the desires they express will be carried out when they pass away or can no longer make decisions.
Author Info: Blake Harris is the Managing Attorney at Mile High Estate Planning where he assists clients with Wills and Trusts, Asset Protection, and Probate. Blake has extensive knowledge and experience helping families plan for and manage the transfer of their assets.
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