Dementia: What You Need to Know About Estate Planning for a Loved One - Part 1 

Millions of families face the daunting challenge of caring for a loved one with dementia each year. If any of your friends or family are facing the prospect of serving as a caregiver for someone suffering from a dementia diagnosis, it is essential that they understand how their condition may affect their legal options, decision-making, how to honor their wishes and provide them with the best possible care. 

In this blog, we'll explore the importance of estate planning, even after a dementia diagnosis, to protect your loved ones. 

Understanding Incapacity 

In the past several decades, the life expectancy of Americans has skyrocketed, and people are simply living much longer than they did years ago.  As a result, degenerative illnesses, like Dementia and Alzheimer’s are becoming more and more common.  That’s why it is so important that we understand these degenerative illnesses and how to help our loved ones if they should lose their legal capacity to make legal, healthcare and financial decisions for themselves. 

Dementia is a progressive condition that affects memory, cognition and daily functioning. Over time, there may come a day when someone suffering from a dementia diagnosis’ condition may decline to the point where they are no longer able to make sound decisions about their finances, healthcare and overall well-being. 

When the effects of dementia make it difficult for a person to care for themselves and make sound decisions, they will legally be determined to be incapacitated, which means they can no longer competently make healthcare or financial decisions for themselves. This change in their memory and cognition can be emotionally overwhelming for both your loved one and your whole family, and without proper planning, can require court involvement. 

The good news is that you can avoid the necessity of court involvement, exorbitant attorney’s fees and unnecessary court costs, if you address these issues quickly enough during the early stages of the disease. Typically at the early stages, people are still legally competent and capable of receiving approval from their doctor to create a legally binding, comprehensive and thoughtful plan to ensure their wishes will be honored and that they will be cared for by the people they know and trust. 

Estate Planning In The Early Stages of Dementia 

Every adult should create legal documents and a comprehensive, personalized estate plan to protect their rights and wishes. This is no different for a loved one with a dementia diagnosis and becomes even more important because it is almost inevitable that they will, at some point, become legally incapacitated. What’s important for you to be aware of in the early stages of a dementia diagnosis, is that in order to create a legal document you need to have mental capacity – meaning you need to be fully aware of what you are doing and what the consequences of your choices will be. 

Thankfully, a person does not need to constantly be in a state of “capacity” to create an estate plan. As long as your loved one has the mental capacity to competently sign their estate planning documents at that moment, the documents will be valid, even if they regress into a state of incapacity afterward. 

Necessary Estate Planning Documents 

In the early stages of dementia, and ideally long before any health problems surface, your loved one should create the following estate planning documents: 

Power of Attorney for Healthcare 

A Power of Attorney for Healthcare (HPOA) appoints someone to make medical decisions on behalf of a loved one when they are unable to do so for themselves. Discussing and establishing a Healthcare Power of Attorney early on allows your loved one to express their medical preferences and ensures their wishes are honored. 

A Power of Attorney for Healthcare should also include Advance Health Care Directives, or what is commonly called a Living Will, which outlines their desires regarding medical treatment, life support and end-of-life care. In our office, we create two stand-alone documents to provide more details concerning end of life decisions, but a statutory and standard Illinois Power of Attorney for Healthcare will include the necessary language to address your advance healthcare directives.  By documenting and discussing their wishes with loved ones, anyone diagnosed with dementia can ensure their wishes regarding life-sustaining treatment, resuscitation, and other medical interventions will be honored.   

More importantly, a Power of Attorney for Healthcare and an Advance Medical Directive can prevent the necessity of your loved ones having to hire an attorney, go to court and endure the expense, stress and time necessary to establish a guardianship.  If these documents are not in place before someone suffering from dementia loses capacity, their loved ones may have to go through this court process to ask a court to award them the power to oversee their medical care and decision-making.  For a fraction of the cost, people can proactively plan and get these documents in place to avoid the necessity of court intervention.  Not to mention, they can outline their wishes regarding sensitive medical decisions and life-sustaining treatment, so that their family does not need to guess or deal with the stress and guilt of deciding for them without truly knowing what they wanted. Even worse, if there may be a disagreement on what you would have wanted, these documents can avoid the necessity of spouses and relatives potentially being forced into a long and expensive legal battle over these sensitive decisions…Terry Schiavo is the greatest and most well-known example of just how important these documents and directives can be.   

General Durable Power of Attorney 

Similar to a Power of Attorney for Healthcare, a General Durable Power of Attorney (POA) is a legal tool that allows your loved one to appoint someone to make financial and legal decisions on their behalf. Their POA can access their bank accounts, write checks, pay bills, maintain their home, file taxes and manage all of their financial affairs.   

This document becomes especially significant as dementia progresses. Encourage your loved ones to designate a trusted individual and back-ups (or successors) as their Power of Attorney while they are still able to make such decisions.  Establishing a guardianship to have a court award these powers can be extremely expensive and time consuming at a critical time, please encourage your loved ones to complete their POA at a fraction of the cost. 

A Revocable Living Trust 

A General Durable Power of Attorney is an important tool, but many of the national and large financial institutions place constraints on the use of a POA, or don’t acknowledge their authority at all. To make sure your loved one has complete protection and control over their financial future, encourage them to establish a Revocable Living Trust and move their assets into the name of the Trust. 

With every passing year, we are seeing it become more common for large banks and financial institutions to not honor or follow state law and POA’s because they are more concerned with fraud prevention than allowing your chosen friends and family to access your financial accounts. Yet, banks must honor the terms of your trust, as the owner of your account.  That’s why the best option is to create a Trust and POA’s for your finances and healthcare. 

As part of creating a Trust, your loved one will name the person they want to manage their assets, called the Trustee. While they have capacity and are competent to do so, they will name themselves and a series of people to step into their shoes when they are no longer able to do so.  They may also appoint a panel of trusted family and friends, along with their doctor, to decide when they are no longer able to manage their affairs, so their successor Trustee can take over without any court involvement.  The Trustee and Power of Attorney are usually the same person, but not always. By having these two estate planning tools in place, you can rest assured that the people your loved one has chosen will be able to manage their assets for them as their dementia progresses.   

A helpful tip – have your loved ones personally give their banks and financial providers a copy of their Certification of Trust and POA’s when they are doing well and in good health, so they have those documents on file, as they will be more likely to honor them when they are needed most.   

Plan As Early As Possible 

One of the most crucial steps in preparing for the challenges of dementia is to help your loved one get a plan in place while they still have the capacity to do so. Waiting until the later stages of the disease can limit their options when it comes to legal issues and estate planning, which will increase stress, costs and investment of time for everyone involved. 

By addressing legal matters early on, you can ensure that your loved one's wishes are respected, and their affairs are managed in the way they intended, by the people they trust, without the need for court involvement. 

If you have a loved one with more advanced dementia, check back here next week as we explore late-stage estate planning options and methods to avoid family and legal conflict over your loved one’s care. 

To learn more, click the button below to schedule a complimentary 15-minute call with our office. 

P.S. If you enjoyed reading this article and made it to the end, please leave a comment and let us know your thoughts and your biggest takeaway. If you think your family and friends could benefit, please share it on social media to spread the word. 

This article is a service of Family Wealth & Legacy Legal Solutions (FWLLS). At FWLLS, we do not just draft documents; we ensure you make educated, informed and empowered decisions for yourself and the people you love. That's why we offer a Family Wealth & Legacy Strategy Session™, during which you will get educated and begin to prepare to avoid life’s most common legal problems and get a plan in place to make the best possible choices for the people you love. You can begin by calling our office today to schedule a Family Wealth & Legacy Strategy Session and mention this article to find out how to get this $750 session at a significantly discounted rate, or even for free.