Last week, we initiated our discussion regarding estate planning for a family member diagnosed with dementia and its implications on their capacity to safeguard their desires through an estate plan. Topics covered include:
- What it means to have mental capacity or be incapacitated
- How dementia affects capacity for estate planning purposes
- The essential estate planning tools a person with dementia needs to create right away
As dementia advances, it’s crucial to take a more proactive and strategic approach to estate planning to prevent potential court disputes over your loved one’s wishes later on. If planning isn’t finalized before dementia progresses significantly, a judge – unfamiliar with your loved one and their preferences – may need to decide who handles their assets and care.
Keep reading to learn what steps need to be considered when estate planning for someone with more advanced dementia.
Seek a Cognitive Evaluation
If there are concerns about your loved one’s cognitive abilities, it’s wise to seek a professional evaluation as part of the estate planning process. You can schedule an appointment with their primary care physician or a dementia specialist to assess their mental state and get guidance on their capacity to make estate planning decisions.
During this evaluation, the medical professional will engage your loved one in discussions about their daily life, their awareness of their situation, and how they might handle various scenarios, like dealing with unexpected visitors or home emergencies.
It’s important to note that your loved one doesn’t need to remember every detail about their life for this assessment to be helpful. What matters most is their ability to analyze situations and make reasoned decisions. For instance, they might not recall the exact day of the week but may demonstrate awareness about not opening the door to strangers.
Getting a report from your loved one’s doctor confirming their cognitive ability to make estate planning decisions, especially when they are lucid, safeguards their autonomy in managing finances and healthcare. This also helps deter future disputes questioning their capacity to create an estate plan.
Encourage Private Meetings Between Your Loved One and Their Lawyer
Assisting your loved one with appointments is natural, especially if they face challenges with hearing or memory. However, whenever possible, encourage your loved one to meet their lawyer independently. This private session allows them to express their wishes without external influence.
Even if your presence is well-intentioned and desired by your loved one, prompting them to have private discussions with their lawyer helps prevent doubts about outside influence on their estate planning choices.
If a full private meeting isn’t feasible, ensure your loved one has chances to speak privately with their attorney by stepping out while the attorney confirms their wishes.
It’s essential to keep a record each time your loved one meets alone with their lawyer and request the lawyer to document these sessions as well.
Make Sure Their Estate Plan Is Executed Carefully
Mistakes during the signing of an estate plan are common, as each state has specific laws governing how these documents should be executed, signed, and witnessed to be legally binding.
If your loved one’s plan isn’t executed correctly, it might lead your family to seek a judge’s intervention to determine its validity. This situation can also open the door for family members to challenge whether your loved one was mentally capable of creating the plan.
It’s crucial to document your loved one’s capacity at the time of signing the estate plan. Ensure their lawyer thoroughly reviews the documents with them before signing, confirming that the plan aligns with their wishes and that they are doing so willingly.
If there are concerns about family members disputing your loved one’s decisions or mental state during signing, discuss with your loved one and their attorney the possibility of recording the signing meeting. This step can counter claims of coercion or lack of understanding regarding the plan.
Conclusion
If your loved one has received a dementia diagnosis but hasn’t addressed their legal matters yet, there’s still time to take action, but it’s important to act swiftly. Even in the later stages of dementia, there might be moments when they can participate in decision-making and estate planning. However, because dementia progresses, it’s crucial for them to create an estate plan as soon as possible. The earlier they plan, the smoother it’ll be to arrange the necessary help as their condition advances.
If your loved one’s capacity declines significantly without completing estate planning, your family might need to pursue a court guardianship. This involves the court appointing a legal guardian to make decisions on behalf of the person with dementia. It’s a stressful process, and the court might select someone your loved one wouldn’t have chosen to manage their assets or healthcare decisions.
To ensure your loved one’s wishes are documented before it’s too late, I encourage you to schedule a Life & Legacy Planning Session with our office today. Our team is committed to providing compassionate guidance and legal expertise to safeguard your loved one’s well-being and ensure their wishes are honored.
At Cheever Law, APC, 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, starting with a valuable and educational Life & Legacy Planning Session. This will allow you to get more financially organized and make the best choices for the people you love. If you have already completed your estate plan, we will review that plan at your Life & Legacy Planning Session to ensure that it will work the way you intend and address any holes or gaps that may be present if circumstances have changed since you executed your plan.
To learn more about our one-of-a-kind systems and services, contact us or schedule a no-obligation 15-minute introductory phone call today.