Estate Planning for a Loved One With Dementia
Dementia affects nearly 6 million people in the United States, according to the Alzheimer’s Association. Naturally, estate planning can be quite difficult for someone who has been diagnosed with dementia. However, proper advance planning and quick action can help lead to an effective estate plan.
The Legal Capacity to Sign a Document
Once an estate owner has been diagnosed with dementia, there will be issues executing any type of legal document regarding future finances. One of the major issues will involve whether the estate owner has the legal capacity to sign an agreement. When one has dementia, there will be legitimate questions as to whether they understand what they are signing. If the estate plan ends up in court, an estate litigation attorney will have to show that the person had the legal capacity to sign the agreement.
Establishing an Estate Plan After Diagnosis
If there is no estate plan in place when a person is diagnosed with dementia, it is still possible to establish one. However, the family must act quickly before the person’s condition further deteriorates. You should be able to show that the document was explained to the person and that they understood what they were signing. If it is possible, preserve some evidence of the fact that the estate owner comprehended everything since they will likely not be in the condition to testify in court if the matter is ever litigated. There will come a point in time where the person will no longer have the legal capacity to make any decisions.
Appointing a Guardian
In general, it’s best to act early to get the input of the person whose estate is being planned. Some estate planning issues may involve the appointment of a guardian for the estate owner. It is better to put this process in motion on your own than to wait for the court to do it for you. If the court appoints a guardian, the family may not get their full say as to who will be the guardian or how much authority they have. This is something that you can anticipate ahead of time since a person with dementia will likely decline to the point where they cannot make their own decisions. It is better to work with an estate litigation attorney in advance in order to avoid actual litigation.
Wills and Living Wills
There are also numerous issues with trusts and estates that you should anticipate and deal with as soon as possible. The first and most important consideration is whether the person has a will in place. After a certain time, any will may be invalid since dementia can eliminate legal capacity. If there is no will, it’s best to create one right away after the diagnosis. In addition to a will that covers matters of property, the estate owner may also want to create a living will.
One of the important things to consider is whether the person has any wishes for an advanced health care directive. They may decide to have a “do not resuscitate” order or some other health care wishes that they’ll want to be honored as they decline. This could be the last chance that they have to get a say in their care as their condition worsens.
Establishing a Trust
Another important trust issue is how to manage financial assets for the rest of the person’s lifetime. Assets may be needed to pay for care. At the same time, the person can no longer manage their own financial affairs since they lack the capacity to make decisions that relate to money. A living trust can do that while leaving the remaining assets after they pass to those the person chooses. This will involve the appointment of a trustee to manage the assets in the trust and to make all necessary decisions affecting the trust.
Contact the attorneys at the Knee Law Firm at (201) 996-1200 in Hackensack if you need help getting the right plan in place for a loved one who is struggling with dementia. We have 60 years of experience in helping area families with trust and elder law issues.