Aging is a privilege in many respects, but the process can be a very humbling one. Some people develop age-related health conditions later in life that affect their quality of life and even their legal rights.
For example, consider dementia, which can develop as a result of Alzheimer’s disease or might occur on its own. A patient experiencing dementia may have a difficult time differentiating reality from fantasy or memories. They can engage in irrational behavior, such as attempting to flee their caregivers. It can be very difficult to come to terms with a diagnosis of dementia for oneself or a beloved family member.
During this difficult time, it is often incumbent upon diagnosed patients to consider updating estate planning paperwork as soon as possible to protect their wishes before they enter into an even more vulnerable position.
Dementia affects testamentary capacity
For someone to draft legally binding documents, they need to be aware of the circumstances. An individual with dementia may not be capable of understanding the long-term consequences of their estate planning choices.
Therefore, the probate courts often invalidate documents drafted by someone experiencing an active state of dementia. Depending on someone’s diagnosis and prognosis, they may still retain testamentary capacity initially. They need to move quickly to protect themselves. They could potentially draft durable powers of attorney and update other documents to reflect their current condition. They may also want to create a trust and advance directives outlining their medical preferences.
A durable power of attorney is important for someone facing permanent incapacitation, as it retains its authority even when they no longer have the legal power to speak on their own behalf. People may also need to make plans for long-term care and take steps to protect their assets. They may also want to revisit how they intend to distribute their remaining property among their loved ones after their passing.
When a spouse or other loved one gets diagnosed with dementia, a family member not facing that diagnosis may also need to consider estate planning. Often, people need to remove a family member with dementia from any position of authority within their estate plans and may even need to restructure how they leave assets to that individual.
Watching a family member’s decline can be a poignant reminder of one’s own vulnerability. Proactively establishing durable powers of attorney can be a smart move for someone witnessing the impact that dementia has on an individual. It can be very difficult to contemplate the financial and legal consequences of a personal medical experience. Yet, recognizing that a change in health may necessitate emergency estate planning efforts can help people protect themselves and the people they love during what may be a very vulnerable time.