Legal documents help ensure that the wishes of the person with dementia are followed as the disease progresses and make it possible for others to make decisions on behalf of the person when he or she no longer can.
As long as the person with dementia has legal capacity (the ability to understand and appreciate the consequences of his or her actions) he or she should take part in legal planning.
The power of attorney document allows a person with dementia (called the principal) to name another individual (called an attorney-in-fact or agent), usually a spouse, domestic partner, trusted family member or friend, to make financial and other decisions when the person with dementia is no longer able. The agent should be chosen carefully; it is recommended that this individual have a thorough conversation with the principal about what the responsibility entails. In addition, a successor agent or agents should be named in the event the original agent is unavailable or unwilling to serve.
With regard to individuals with dementia, power of attorney documents should be written so that they are "durable," meaning that they are valid even after the principal is incapacitated and can no longer make decisions.
Power of attorney does not give the appointed person (agent) the authority to override the decision making of the person with dementia (principal). The person with dementia maintains the right to make his or her own decisions — as long as he or she has legal capacity — even if the decisions are not what others believe are good decisions.
Once a person with dementia is no longer able to make decisions, the agent is authorized to manage and make decisions about the income and assets of the principal. This agent is responsible for acting according to the person's wishes and in his or her best interest.
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A power of attorney for health care allows a person with dementia to name a health care agent to make health care decisions when he or she is no longer able. This type of legal document is also called an "advance directive."
Health decisions covered by the power of attorney for health care include:
- Doctors and other health care providers
- Types of treatments
- Care facilities
For a person in the later stages of dementia, the health care agent also may make end-of-life decisions, such as providing nutrition through a feeding tube or giving "do not resuscitate" (DNR) instructions to health care providers.
It is important for the person with dementia to talk through his or her wishes regarding care with the chosen agent early on to make sure the agent understands those wishes and is willing/able to act on behalf of the person with dementia.
Once legal documents are filled out, the individual with dementia, the caregiver or a trusted family member, the attorney and the doctor should all have copies.
A living will is also a type of "advance directive" that expresses how a physically or mentally incapacitated person wishes to be treated in certain medical situations. It is generally something that an individual prepares and signs prior to his or her impairment.
In a living will, the person with dementia may state, among other things, his or her wishes regarding artificial life support. A living will generally comes into play once a doctor decides that a person is incapacitated and unable to communicate his or her desires regarding life-sustaining treatment. Depending on the state in which an individual resides, a specific form for a living will may be required, or it may be drafted by the person's attorney.
The will is a document identifying whom a person with dementia has chosen as:
- Executor, the person who will manage the estate
- Beneficiaries, the person(s) who will receive the assets in the estate
The executor named in the will has no legal authority while the person is living. A will only takes effect when a person dies.
A will cannot be used to communicate health care preferences. However, it can offer peace of mind that a person's wishes will be fulfilled upon death. An individual with dementia should have a signed will in place as soon as possible, while he or she is still able to make decisions. Please note that the validity of a will is dependent on state law.
A living trust is another way for the person to give instructions for how his or her estate should be handled upon death.
Depending on state law and an individual's personal circumstances, a living trust may allow an estate to avoid probate (i.e., the process used by the court to distribute the property of a person who has died). It may or may not provide tax advantages.
The person who creates the trust (called a grantor or trustor) appoints him- or herself (and possibly someone else) as trustee(s). If a single trustee is designated, the trust document should also specify a successor trustee, who will take over when/if the initial trustee is unable to serve due to incapacity or other reasons. A trustee is usually a person but may also be an institution such as a bank. The trustee is responsible for carefully managing the property (assets) of the trust.
A guardian or conservator is appointed by a court to make decisions about a person’s care and property. Guardianship is generally considered when a person with dementia is no longer able to provide for his or her own care and either the family is unable to agree upon the type of care needed or there is no family.
Acquiring guardianship takes time. It involves enlisting the help of an attorney and testifying in court for guardianship proceedings. Not only does a guardian make health care and financial decisions, a guardian also makes sure the person’s day-to-day needs for safety, food, shelter and care are met. Guardians are responsible to and supervised by the court.
The rules surrounding guardianship vary by state. Any family considering guardianship or conservatorship should consult with an elder care attorney familiar with the guardianship process in that state.
Help Is available
Do you need assistance locating an elder law attorney? Start with these resources:
- If you have a family attorney, he or she may be able to refer you to an elder law attorney.
- Use the Alzheimer’s Association Community Resource Finder to find legal experts in your area.
- Use the online directory of the National Academy of Elder Law Attorneys.
- Visit the Eldercare Locator online or call 800.677.1116.
- Visit LawHelp.org to learn about free or reduced cost legal aid programs in your community.