Important Documents to Have in Place Before Dementia Sets In
Jan. 12, 2023
Estate planning is an important activity for every adult. In fact, the earlier you begin, the more likely you are to have in place what you need not only when you die but should you become unable to make decisions for yourself while you are alive. You can be young, in great health, and own few assets and still benefit from having your affairs in order.
For those diagnosed with some form of dementia, including Alzheimer’s, there is an urgency to plan. At some time, you or your loved one will lack the mental capacity to make decisions. If you have not taken steps to prepare for that time, what happens may be determined by the court.
Any cognitive impairment diagnosis is frightening because you know that you will, at some point, be unable to speak for yourself. The better you prepare your legal affairs while you can, the better off you and those you care for will be.
At the Law Offices of Lawrence H. Nemirow PC, helping clients and their families put their legal affairs in order is what I do. I work with clients in Los Alamitos, Anaheim, Huntington Beach, Cerritos, Long Beach, Santa Ana, and Newport Beach, California, and throughout Los Angeles and Orange counties. I provide experienced, informed, and compassionate legal guidance to those who need it most.
How Does Cognitive Impairment Affect Legal Capacity?
Being an adult age 18 or older is not the only requirement for people to have a legal capacity to make decisions. Legal capacity requires the cognitive ability to process information and fully understand the consequences of the actions you take. For example, you must be able to fully comprehend what it means to delegate authority to someone else in a springing durable power of attorney to make decisions about the management of your assets to provide for your care.
Alzheimer’s and other forms of dementia impair your ability to process information, reason, and make decisions. The point when someone reaches what doctors would diagnose as cognitive impairment too great for them to maintain legal capacity over their affairs will differ from individual to individual. However, with any condition that leads to cognitive impairment, that moment will arrive one day. That is why it is vital that you or your loved one work with an estate planning attorney now to execute the documents you will need when that time comes.
What Documents Should Be in Place?
When facing cognitive impairment, you should execute all estate planning documents that will not only express your wishes after you die, but also while you are alive but lacking the legal capacity to make your own decisions. Some key documents include:
A durable power of attorney allows you to give your authority to someone else to make financial decisions and manage your assets when you are unable to. The power of attorney document must list the actions your agent can take on your behalf, likely including management of your retirement, investment, and bank accounts, the ability to buy and sell real property and liquidate assets, management of your Social Security and other benefits, and a general ability to use your assets to pay the medical and living expenses you will incur.
A durable power of attorney for healthcare allows you to name the person you want to make decisions about your healthcare and treatment when you no longer can. This power of attorney will give authority to your agent to obtain medical information from your healthcare providers so they can make decisions in your stead and provide access to your health insurance and Medicare account.
The durable power of attorney may include or be supplemented by other important healthcare documents. You should execute a living will that states what types of treatment measures you do and do not want to be taken, your wishes regarding organ donation, and other end-of-life decisions. You can execute a do-not-resuscitate order (DNR) which advises emergency responders and healthcare providers if you do not want to be resuscitated if you stop breathing. Physician orders for life-sustaining treatment (POLST) can express your wishes regarding any lifesaving treatment such as blood transfusions or intravenous nutrition.
You should execute a will in which you can specify an executor to administer your estate in probate court. Your executor will inventory assets, liquidate them as needed, pay debts, and distribute the remainder to the beneficiaries you name in your will. Without one, the probate court will appoint a personal representative and distribute the residual assets of your estate according to intestate succession, rather than to whom you want to inherit.
You may also consider creating a living trust. In this document, you transfer ownership of personal assets to the trust. A trustee manages those assets for your benefit while you are alive and for the benefit of the distribution to your beneficiaries when you die. Trusts have tax benefits and are not subject to the probate process because their assets are not your personal property. That maintains the privacy of the assets of the trust and its beneficiaries.
The Importance of Working With an Estate Planning Attorney
Working with an experienced California estate planning attorney is advisable. Your attorney will help you consider all scenarios, educate you about the tools at your disposal, and help you make sure you execute all the documents necessary in light of your diagnosis.
For example, one important consideration with powers of attorney, wills, and trusts is the need for successor agents, executors, and trustees. You can choose who you want to serve in these roles if the first person you name is unable or unwilling to serve in that capacity when it is time for them to do so. For example, if you delegate authority to your spouse in a durable power of attorney for healthcare and your spouse dies before you do, the person you name as your spouse’s successor can assume that role. Without successors named, who serves becomes a matter for the court to decide.
Your attorney will also work with you in the years you continue to have the legal capacity to keep your estate planning documents updated as your wishes, your health, and circumstances in your life change.
Rely on Experienced Representation
If you or a loved one is facing a dementia diagnosis, the future can be frightening. While you can, take time to create and execute the estate planning documents that reflect your wishes, not the court’s.
Contact me at the Law Offices of Lawrence H. Nemirow PC today to schedule a consultation. Putting your affairs in order can help you enjoy the time you have. Call now.