Not many people go through life wondering what will happen if they lose control over their mind or body. However, the Alzheimer’s Association estimates that in 2017, close to 50 million people struggled with dementia.
For family members, the warning signs can be hard to spot, and the person may even try to hide them. There may be confusion over regularly performed tasks, forgetting to pay a bill or missing a meeting. According to the Taunton Gazette’s article “Preparing for complications associated with aging,” family members must keep their eyes open for clues, including lapses in judgement about financial matters, like sending money to a phone call scammer, or changes in behavior.
A conversation should be part of estate planning or when talking about regular financial planning. Address the potential problems, while parents still have mental capacity. As soon as any warning signs are evident, the time frame for preparedness needs to speed up.
When discussing the estate plan, several documents are used to prepare for cognitive impairment. In addition to a last will and testament, the estate plan needs to have a health care power of attorney and a durable power of attorney.
A Health Care Power of Attorney is a legal document that gives caretakers, usually an adult child, and sometimes a trusted friend, the legal ability to speak with health care providers about medical treatment. These documents need to be kept current, so there are no obstacles to their use. Every three to five years, they should be updated, or as circumstances change. Without them, the caretaker won’t be able to have a conversation with a loved one’s doctor regarding any health issues, including mental capacity.
A Durable Power of Attorney allows another person, who is called the “agent,” to handle almost everything in your life. This also needs to be current, since many banks and financial institutions will balk, if they are handed a POA that is more than five years old. Many financial institutions have their own forms. Each institution needs to be asked what forms they will accept, and how “fresh” the POA needs to be.
Cognitive impairment is an important reason for aging adults to rely on trusts. Unlike assets in an individual’s name, assets owned by a trust can be managed by a trustee. If you are the trustee and become mentally incapacitated, your chosen back-up trustee can manage the assets. The trustee needs to be someone you trust with no reservations, who is willing to take on this task.
One of the challenges of incapacity, is transferring the management of a person’s assets and their health care decisions to someone who is not impaired. The aging parent may be very good at hiding their disability, and they can often mislead family members for extended periods of time.
One unusual and creative idea: create a “disability board of directors”—a group of family members, friends, or beneficiaries who decide if the loved one needs help. This is far easier than relying on doctors to declare incompetency or needing to apply to the court for guardianship.
Your elder law attorney will be able to create a plan for incapacity as part of an overall estate plan.
Reference: Taunton Gazette (July 12, 2019) “Preparing for complications associated with aging,”
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