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Making legal plans in advance is important for several reasons: Early planning allows the person with dementia to be involved and express his or her wishes for future care and decisions. This eliminates guesswork for families, and allows for the person with dementia to designate decision makers on his or her behalf. Early planning also allows time to work through the complex legal and financial issues that are involved in long-term care.
Legal planning should include:
- Making plans for health care and long-term care
- Making plans for finances and property
- Naming another person to make decisions on behalf of the person with dementia
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Legal capacity is the ability to understand and appreciate the consequences of one's actions and to make rational decisions. In most cases, if a person with dementia is able to understand the meaning and importance of a given legal document, he or she likely has the legal capacity to execute (to carry out by signing) it.
The requirements of legal capacity can vary from one document to another. A lawyer can help determine what level of legal capacity is required for a person to sign a particular document.
Before a person with dementia signs a legal document:
- Talk with the person. Find out if the person with dementia understands the legal document and the consequences of signing it. Make sure the person knows what is being explained and what he or she is being asked to do.
- Ask for medical advice. If you have concerns about the person's ability to understand, ask for medical advice. A doctor may be able to assist in determining the level of a person's mental ability.
- Take inventory of existing legal documents. Verify whether living wills, trusts and powers of attorney were signed before the person was diagnosed. The person may no longer remember having completed them. Even if legal documents were completed in the past, it is important to review them with another person for necessary corrections and/or updates.
Meeting with a lawyer
You can complete certain legal documents without a lawyer, but getting legal advice and services from an attorney who specializes in elder law can be especially helpful.
If you already have a lawyer, he or she may be able to refer you to an attorney that specializes in elder law. Otherwise, there are several resources available to help you locate elder law services in your community.
If you meet with a lawyer, be sure to discuss these three key issues and any other concerns you may have:
- Options for health care decision making for the person with dementia
- Options for managing the person's personal care and property
- Possible coverage of long-term care services, including what is provided by Medicare, Medicaid, veteran benefits and other long-term care insurance.
Gather all documents relating to the assets of the person with dementia ahead of time so you can bring them to your appointment.
Checklist: What to bring to the lawyer
✔ Itemized list of assets (e.g., bank accounts, contents of safe deposit boxes, vehicles, real estate, etc.), including current value and the names listed as owners, account holders and beneficiaries
✔ Copies of all estate planning documents, including wills, trusts and powers of attorney
✔ Copies of all deeds to real estate
✔ Copies of recent income tax returns
✔ Life insurance policies and cash values of policies
✔ Long-term care insurance policies or benefits booklets
✔ Health insurance policies or benefits booklets
✔ Admission agreements to any health care facilities
✔ List of names, addresses and telephone numbers of those involved, including family members, domestic partners and caregivers, as well as financial planners and/or accountants
Five quick tips
- Those named in the power of attorney document should have a copy of and access to the original document.
- The person with dementia should name a successor (back-up) agent for power of attorney in the event that the agent may one day be unable to act.
- The person with dementia should decide if the agent with power of attorney for health care has authority to consent to a brain autopsy. This may vary according to state law.
- Once a power of attorney for health care document and/or a signed living will is in place, give a copy to the person's physicians and other health care providers.
- Consider choosing an attorney or a bank to manage the individual's estate if the person lacks a trusted individual with the time or expertise.
Help is available
Do you need assistance locating an elder law attorney? Start with these resources: