A dementia diagnosis can be devastating for a family. When dealing with uncertain and unpredictable diseases like Alzheimer’s Disease, estate planning can be both daunting and confusing. In cases where degenerative cognitive diseases are a factor, early estate planning, while you or your loved one still has cognitive ability, becomes essential to ensuring a secure future for your family.
Estate plans consist of several documents, including Wills, Trusts, Powers of Attorney, and Advance Medical Directives. These documents propound in writing who your inheritors are, what they will receive, who has authority to make medical and financial decisions on your behalf, and what kind of medical care you wish to receive at the end of your life. Once faced with a dementia diagnosis, these documents become an essential link between your named decision makers and third party medical and financial institutions. Your estate planning documents ensure that your preferences will be upheld and your assets protected once you are no longer able to provide cognitive input. For instance, in your Medical Power of Attorney, you will name trusted individuals who will make medical decisions for you if you are unable to communicate. Additionally, an Advance Medical Directive can be used to let others know your preferences for care when you are in a terminal condition. Estate planning offers peace of mind during a time of uncertainty, ensures only the people you trust are handling your affairs, and sets clear expectations for situations of incapacity and postmortem events.
It is important to begin the estate planning process early into a dementia diagnosis. The person with the dementia diagnosis must have the mental wherewithal to understand the documents he or she is signing. Additionally, in order to properly notarize estate planning documents, the notary must believe to the best of his or her knowledge, that the signing party is lucid, is informed, understands the nature and extent of their estate, and can make rational, independent decisions. Witnesses, when applicable, must be able to do the same, under oath. Dementia can impact an individual’s eligibility as a signer under these requirements, so early planning while the signer has cognitive ability is essential. Not all estate planning documents must be notarized and/or witnessed to be valid, however; properly executed documents that include notarization make it difficult for estate planning documents to be contested in probate court. Having your Will properly witnessed and notarized is a strong protection against a Will contest after your passing.
If dementia has progressed to the point that you or your loved one is no longer able to make independent decisions, it will be too late to start the estate planning process. Individuals who do not demonstrate mental acuity may not sign legal documents; doing so may open the door to their documents being challenged in court. Unfortunately, the choices for estate planning once dementia has progressed to loss of mental capacity are limited. Often, you or your loved one will be faced with only one choice: Legal guardianship. Guardianship is an expensive and emotionally draining court proceeding which removes many of our basic rights, such as the right to drive, marry, vote, and determine our domicile. It is the option of last resort and one that can be avoided with proper estate planning.
While a dementia diagnosis is terrifying, proper estate planning can offer your family solace and stability during this difficult time. If you or a loved one is currently facing a recent dementia diagnosis, please reach out to Heights Law Group. We’re available to help you begin the estate planning process.
