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Planning Ahead for Legal Matters

Planning Ahead for Legal Matters

July 12, 2023

While it’s important for everyone to plan for their future, legal plans are especially vital for a person diagnosed with dementia. The sooner these plans are put in place, the more likely it is that the person living with dementia will be able to participate in the process.

Why Plan Ahead?

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:

  • Preparing for long-term care and health care needs.
  • Making arrangements for finances and property.
  • Naming another person to make decisions on behalf of the person with dementia.

It can be difficult to talk about dementia with a friend or family member, especially when you have to talk about legal and financial issues. Dementia Conversations: Driving, Doctor Visits, Legal & Financial Planning, a free online course, prepares you to have these these difficult conversations.

Legal Capacity

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. As long as the person has legal capacity, he or she should take part in legal planning. A lawyer can help determine what level of legal capacity is required for a particular document, as it can vary from one type of document to another.

Before a Person With Dementia Signs a Legal Document

Discuss the Document

Make sure that the person understands the document, the consequences of signing it 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, a doctor will be able to help determine the level of his or her mental capacity.

Assess Existing Legal Documents

Even if a living will, trust and power of attorney were completed in the past, it’s important to review these documents for any changes and update as necessary.

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 key issues and any other concerns you may have:

1. Options for health care and long-term care decision-making for the person living with dementia.

2. Options for managing the individual’s personal care and property.

3. Possible coverage of long-term care services, including what is provided by Medicare, Medicaid, veterans 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.

Quick Tips

1. Those named in the power of attorney document should have a copy of and access to the original document.

2. 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.

3. 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.

4. Once a power of attorney for health care document and/or a signed living will is in place, give copies to the person’s health care providers.

5. 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.

6. The person living with dementia should discuss his or her wishes with the chosen power of attorney to make sure the agent is comfortable carrying them out.

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