Elder Law Group Blog

What To Do When Your Mental Capacity Or That Of A Loved One Declines

Jan 25, 2016 | News

Dementia, including degenerative brain diseases like Alzheimer’s and Parkinson’s, but also often a part of declining health due to advanced age, is a difficult prospect for any senior and their family. The specter of losing one’s capacity to make coherent decisions, communicate, provide self-care and recognize loved ones is frightening. Few people want to think about it, much less prepare for it, but this is a very necessary thing to do.
The number of persons living with Alzheimer’s disease is currently 5.3 million and by 2050 the Centers for Disease Control and Prevention (CDC) predicts this number will more than double. Currently, one million Americans suffer from Parkinson’s disease. These are just two of the cognitive disorders typically characterized by memory impairment. The prevalence of cognitive disorders in our aging society means that it is vital for seniors and their families to take steps to ready themselves even before a diagnosis. If a physician has diagnosed impairment, you still may have capacity to understand and execute legal documents, which is a legal determination by an attorney or by a court.
How do you prepare?
Planning for Long-Term Care that you may need in anticipation of a decline with dementia is beyond the scope of this article. However, the Long-Term Care plan you create with your Elder Law attorney will drive the changes necessary in your estate plan. There are three critical documents that every adult needs, but particularly those afflicted with dementia. These are Durable Powers of Attorney for financial and medical decisions and a Healthcare Directive.
While mental capacity exists to understand and execute legal documents, these documents should be completed to take immediate effect. This does not mean you lose control over your affairs while you have capacity, but that a person of trust you name as your decision maker has the proper legal authority as soon as you need help. The alternative is to make your documents effective on a “springing” basis, which means upon your incapacity, typically as certified by two physicians. This delays the help you need and invites conflict among family members that may have to be resolved in court. A skilled Elder Law attorney can help you avoid this and include safeguards to ensure that your decision maker makes decisions as you would.  
General Durable Power of Attorney – This document allows you to grant authority to a decision maker you choose to handle your financial affairs should you become incapable of doing so. This decision maker is known as your “Attorney-In-Fact for Financial Affairs.” Your decision maker will have fiduciary responsibility, meaning he or she is required to act in your best interest, without intent of personal gain. You should also name several successors to your primary decision maker in case he or she is unable or unwilling to serve at your time of need. Click here to read more about the General Durable Power of Attorney.
Durable Power of Attorney for Healthcare – This document allows you to grant authority to another decision maker to make medical decisions on your behalf should you become incapable of doing so. This can be the same Attorney-In-Fact as your financial decision maker or another person. Again, you should name several successors to your primary decision maker. Click here to read more about the Durable Power of Attorney for Healthcare.
Healthcare Directive – Your estate plan should also include a Healthcare Directive. This is also known as an Advance Directive or Living Will. This document includes your wishes for end-of-life care. It functions as a healthcare roadmap, providing instructions for your healthcare decision maker and your medical team to follow in case further treatment would simply prolong your death and not provide any hope of recovery for what you consider a good quality of life.
These three documents, properly prepared by your Elder Law attorney in concert with your Long-Term Care plan, will help avoid court involvement, allay concerns you may have about having your wishes followed if you cannot express them and provide peace of mind to you and your family. They are the most important part of every Elder Law Group plan for preserving your assets and protecting your eligibility for Medicaid benefits. Consult the skilled and compassionate attorneys from Elder Law Group today to learn more about what you or a loved one can do.

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