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Important Documents to Have in Place Before Dementia Sets In

The Law Office of David G. Bale May 24, 2022

About 5 million Americans currently suffer from Alzheimer’s, with the number expected to triple in the next four years. For those aged 85 or older, the odds are that half will develop the disease. Alzheimer’s is the most prominently mentioned form of dementia, representing 50 to 60 percent of all sufferers of dementia.

There are practical steps you can take to help prevent the onset of dementia – primarily by staying both physically and mentally active. However, just as important are the legal steps you can take. It’s important that you legally care for yourself and your loved ones should you fall victim to the disease.

If you suddenly are incapacitated because of dementia, you will need to have someone you’ve authorized to make financial and other decisions for you. Also, you will need documents in place to specify the medical treatments you will accept – or won’t accept. You may also need to name someone to become your guardian to care for you when you no longer can.

These are all important decisions to be made as part of the estate planning process, and they must be made and put in writing before you become incapacitated. Once you’re incapacitated, it’s too late. Matters may well end up in court with a judge deciding matters for you.

If you’re in Westerville, Ohio, nearby Worthington or New Albany, or anywhere throughout the Delaware or Franklin counties, contact The Law Office of David G. Bale. Attorney Bale has been helping clients navigate the estate planning process and probate court proceedings for more than two decades.

Cognitive Impairment and Legal Capacity

We’ve all seen courtroom dramas and readings of wills. In these TV shows and movies, often the term “of sound mind” is mentioned. This refers to a person having the capacity to authorize legal documents only when they are not incapacitated mentally from something like dementia or Alzheimer’s, or from another physically or mentally debilitating condition.

The point here is that, in preparation for life’s unforeseen events – even foreseen events such as your passing – you need to do so in advance of any debilitating condition. Depending on the stage of your dementia, should you fall victim, you may not possess the legal capacity to sign a power of attorney, or even a last will and testament for that matter.

There’s a saying in estate planning: You can never be too young or too old to start, but you can be too late. That’s why you need to plan for the future when you still have the capacity to do so.

Important Documents to Have in Place

A will is the basic building block of estate planning, whether or not you ever suffer from dementia. A will designates who gets what of your assets once you’re gone and thereby provides a means to care for your loved ones. One major problem with a will, however, is that it must go through probate court, which can take months and run up legal costs if there are challenges by creditors or would-be beneficiaries.

A living trust is similar to a will in that you name someone to administer your estate when you’re gone. The difference? A trust does not need to go through probate proceedings overseen by a judge. When you have a living trust, you remain the trustee while you’re alive and mentally and physically capable. But when that changes, your named successor trustee will oversee the administration of your estate.

A will or living trust will take care of your loved ones, but in estate planning, you also should prepare for your own future. Maybe you’ll live to a ripe old age and never face dementia or incapacitation, but you can never be sure. The recent pandemic should have driven home the point that anything can happen to anyone at any possible time.

Therefore, for your own sake, you should consider creating a durable health care power of attorney. Durable means that the person you name as your agent, or attorney-in-fact, will still have the authority given them should you become incapacitated. This person can be a close friend or family member. They will be authorized to make medical decisions for you if and when you cannot.

Accompanying this health care power of attorney, you should create what is called a living will. A living will lets you express your desires for medical treatment in end-of-life situations. Do you want to be resuscitated or kept alive artificially? Do you wish to donate organs? These are all important decisions to be addressed.

You also should give the person named in your health care power of attorney a HIPAA release authorization. HIPAA refers to the Health Insurance Portability and Accountability Act, which restricts who can view your medical history. Executing a HIPAA release will let your named health care agent access all your medical records to better make decisions.

Finally, you’ll need to plan out your guardianship. Should you become incapacitated by dementia, or anything else, and your family cannot care for you, or you find yourself alone in the world, a court may step in to name a guardian to care for you.

Instead of leaving your fate to the hands of a judge, you can use your health care power of attorney to name a guardian, also known as a conservator. In fact, you can name not only a guardian but also alternate guardians should the first named be unable to perform the duties.

The Importance of Working with an Estate Planning Attorney

While there are online forms that purport to let you create the documents mentioned above, they are very general in nature and do not address every possible scenario or eventuality. There is no such thing as, for instance, a “one size fits all” living trust or living will. Every person has unique circumstances that legal documents must address.

Working with an experienced estate planning attorney will help make sure that the legal documents you create will meet all your personal needs along with your loved ones’ needs, as well as all legal requirements.

To begin your estate planning, or to review and update whatever you already have, contact The Law Office of David G. Bale. Attorney Bale proudly serves clients throughout Westerville, Worthington, New Albany and the counties of Delaware and Franklin. Let’s get started today.