Estate Planning Essentials for Caregivers of Individuals with Dementia - Part 2
Last week, we initiated our exploration into estate planning for individuals diagnosed with dementia https://bit.ly/eplanningforcaregivers, focusing on how this impacts their ability to safeguard their wishes through an estate plan. Our discussion encompassed:
- Understanding mental capacity and incapacitation
- The influence of dementia on the capacity for estate planning
- Vital estate planning tools necessary for a person with dementia to implement immediately
As dementia advances, estate planning needs to shift towards a more proactive and strategic approach to prevent legal disputes and court involvement regarding your loved one’s future wishes. If estate planning is delayed until dementia is too advanced, decisions regarding the management of your loved one’s assets and care may fall to a judge who is unfamiliar with your loved one and their preferences.
Continue reading to discover the essential steps for estate planning for someone with more advanced stages of dementia.
Arrange for a Cognitive Assessment
If there are concerns about your loved one's cognitive capabilities, arranging for a professional assessment is a wise and forward-thinking step in the estate planning journey. It's advisable to set up a consultation with their primary healthcare provider or a dementia specialist to evaluate their mental status and offer an opinion on their capacity to make estate planning decisions.
During this assessment, the healthcare professional will engage with your loved one, asking questions about their daily life, their awareness of their situation, and how they would react in specific scenarios, such as responding to an unexpected visitor or handling a household emergency like a burst pipe.
It's important to note that your loved one doesn't need to recall every aspect of their life for the evaluation to be useful. The focus will primarily be on their ability to understand a situation and make a considered decision. For instance, they might not recall the current day of the week but could still demonstrate understanding of not opening the door to strangers.
Obtaining a medical report confirming your loved one’s cognitive capability to make estate planning decisions, particularly in moments of clarity, is crucial. It secures their right to make financial and healthcare decisions and preempts any future challenges from third parties questioning the legitimacy of their estate planning.
Promote Independent Consultations Between Your Loved One and Their Attorney
Assisting your loved one with their appointments is a natural instinct, particularly when hearing or memory issues make it challenging for them to keep up. However, it's crucial to encourage them to have one-on-one meetings with their lawyer whenever possible. Private discussions with their attorney allow your loved one to convey their desires freely, without any outside influence.
Even though you may have your loved one's best interests in mind and they might prefer your presence during these meetings, promoting solo interactions with their lawyer helps to eliminate any doubts about your influence on their estate planning choices.
If it's impractical for your loved one to conduct an entire session alone with their lawyer, try to ensure they have moments of privacy during the meeting. You can do this by stepping out of the room momentarily, allowing the attorney to directly confirm your loved one's intentions.
It's also important to keep a record of each occasion your loved one has a private meeting with their lawyer, and ask the attorney to do the same.
Ensure Diligent Execution of Their Estate Plan
Mistakes during the signing of an estate plan are unfortunately common. The legal requirements for executing estate planning documents vary from state to state, including the specifics of signing, necessary witnesses, and notary involvement to make the document legally binding.
If not executed correctly, your loved one's estate plan might lead to the need for judicial involvement to determine its validity. This could also open doors for family members to challenge whether your loved one was mentally capable of making the plan.
It's crucial to document your loved one's mental capacity at the time of signing the estate plan documents. Their lawyer should thoroughly review the documents with your loved one, ensuring that they accurately reflect their wishes and that the plan is made of their own volition.
If there's any concern about family members disputing your loved one's decisions or mental state at the time of planning, consider discussing with your loved one and their attorney the possibility of recording the signing session. This can help refute any claims of coercion or misunderstanding about the estate planning process.
Final Thoughts
If your loved one has been diagnosed with dementia and hasn't yet taken care of their legal affairs, it's important not to lose hope but to act swiftly. Even in advanced stages of dementia, there may be moments when they are capable of participating in decision-making and estate planning. However, due to dementia's progressive nature, it's critical to start planning as soon as possible. Early planning makes it easier to secure the necessary assistance as their condition worsens.
In situations where your loved one's mental capacity is significantly reduced and estate planning is incomplete, your family may have to seek court-appointed guardianship. This process involves the court selecting a legal guardian to make decisions on behalf of the person with dementia. This route can be stressful, and there's a risk that the court may choose a guardian who doesn't align with your loved one's preferences for managing their assets and healthcare.
To ensure your loved one's wishes are recorded before it becomes too late, consider scheduling a Life & Legacy Planning Session™ with my office. Our team is committed to offering empathetic support and legal expertise to protect the well-being and preferences of your loved one.
[Click here to schedule a meeting](https://bit.ly/20westlegalmeetingscheduler).
This article is a service of 20WestLegal LLC. We don't just draft documents; we ensure you make informed and empowered decisions about life and death for yourself and the people you love. That's why we offer a Planning Session, during which you will get more financially organized than you've ever been before and make all the best choices for the people you love. You can begin by calling our office today to schedule an Initial Planning Session and mention this article to find out how to get this $750 session at no charge.
The content is sourced from Personal Family Lawyer® for use by Personal Family Lawyer® firms, a source believed to be providing accurate information. This material was created for educational and informational purposes only and is not intended as ERISA, tax, legal, or investment advice. If you are seeking legal advice specific to your needs, such advice services must be obtained on your own separate from this educational material.