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Dementia and Alzheimer’s: The First Legal Steps

A few weeks after Francesca’s doctor told her she might have Alzheimer’s disease, her son Joseph visited her.

“Mom, I’ve been thinking we might need to talk,” Joseph said. “Ever since Dad died, I’ve been trying to help you with the financial details Dad usually handled.”

Francesca nodded, but said nothing.

“Now, don’t get me wrong, Mom. We know you’re still doing pretty well on your own right now,” Joseph continued. “And hopefully you’ll be able to for years.”

Francesca folded her hands in her lap. “So then let’s not worry about it now.”

Handling the Problem

While Francesca is still in the early/mild stages of dementia, even though she may experience short episodes of impaired mental function, she can still receive, understand and evaluate information. She can use that information to make rational decisions and execute legal documents.

But Francesca’s thinking and judgment most likely will become impaired as the disease continues. Even though the episodes of dementia may become more frequent and last longer, she will likely still continue to enjoy decision-making abilities into the end-stage of the illness.

In the process, she may no longer meet her state’s legal test for “capacity,” a requirement for executing valid and enforceable legal documents. Although state requirements vary, capacity, in general, is the mental ability to perceive and appreciate relevant facts and make rational decisions.

The First Steps

The single most important documents to put in place are durable powers of attorney for financial matters and for health care decisions, giving a family member or trusted friend the legal authority to carry out your wishes if you can no longer speak or act for yourself.

Powers of attorney are relatively simple. They are inexpensive legal documents that give authority to another person to act for you and/or with you. If you don’t grant power of attorney, and if the disease progresses to the point where you can no longer express your wishes or make decisions, your family may later face expensive court action to convince a judge that they are the proper people to make decisions and act for you.

Once you decide to grant someone power of attorney, who do you name as your agent, or agents? Choosing agents you trust is critical. Typically, a family member acts as an agent, but some people ask a close friend or a trusted neighbor.

Powers of Attorney for Property

The durable power of attorney for property (financial decisions) names an agent to handle financial and business matters on behalf of the principal (the person who executes the power of attorney). You may at first be reluctant to sign a durable financial power of attorney because you want to hold on to your independence a while longer. However, a power of attorney doesn’t remove your rights. Rather, it lets another person act either with you or in your place if you lose the capacity to.

Powers of Attorney for Health Care

A durable power of attorney for health care decisions, also known as a health care proxy, is crucial for people with Alzheimer’s disease and dementia. The health care power of attorney resembles the financial power of attorney, but instead of letting the agent conduct financial business, the health care power of attorney lets the agent make personal and health care decisions on your behalf.

If you cannot speak for yourself, or if you lack capacity to make informed and reasonable decisions, your agent will be responsible for health care decisions, like which doctors you see and what treatment you receive. If you need to reside in an assisted living facility or nursing home, your agent will make that decision for you, as well (if you granted the agent such authority in the document). Similarly to the financial power of attorney, the health care document creates a fiduciary duty for the agent.

Don’t Wait

Because the progression of Alzheimer’s disease is unpredictable, putting proper legal documents in place as early as possible permits flexibility and helps persons with dementia and their families deal with whatever financial or medical events occur along the way.

For more, call 847-292-1220, e-mail abferraro@abferrarolaw.com or visit www.ABFerraroLaw.com.

About Anthony B. Ferraro

Anthony B. Ferraro is the founder and managing member at the Law Offices of Anthony B. Ferraro. He received his Bachelor of Science degree in accountancy from DePaul University and his Master of Science in taxation. After receiving his CPA designation in 1978, he enrolled in law school, earning his Juris Doctor in 1983 from De Paul University. An elder law practitioner, his practice areas include Medicaid planning and applications, guardianship, probate & trust administration, long-term care planning, nursing home contracts and admission, senior estate planning, special needs planning, estate planning, and estate taxation.