Alzheimers legal plans

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Alzheimer’s is a slowly progressive degenerative process of the brain, usually beginning after the age of 65 and becoming progressively more common with age.

Alzheimer’s is a slowly progressive degenerative process of the brain, usually beginning after the age of 65 and becoming progressively more common with age.

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  • 1. legal plansAssisting a personwith dementia inplanning for the futurethe compassion to care, the leadership to conquer
  • 2. plan for the futureWhile its important for everyone to plan for the future,legal plans are especially vital for a person with dementia.Dementia is a general term for the loss of memory,decision-making and other intellectual abilitiesserious enough to interfere with daily life.Alzheimersdisease is the most common form of dementia.Once a person is diagnosed with dementia, a familymember, domestic partner or friend should help theperson make legal plans.The sooner planning begins,the more likely it is that the person with dementia willbe able to participate.Legal planning includes:z Making plans for health care and long-termcare coverage.z Making plans for finances and property.z Naming another person to make decisions onbehalf of the person with dementia.1
  • 3. *This brochure contains only general information and is not meant to be legaladvice. Laws vary by state and are constantly changing. As a result, we make nowarranty or guarantee of the accuracy or reliability of the information containedherein. You should consult a lawyer before acting on any information containedherein for advice specific to your situation.The Alzheimers Association strongly advisesstarting legal plans now. Inside, youll find thebasics on:1 Legal capacity page 32 Legal documents page 53 How to find a lawyer page 94 How to prepare for your meeting page 105 What to discuss with your lawyer page 116 Terms your lawyer may use page 122
  • 4. 1. legal capacityIn most cases, if a person with dementia is able tounderstand the meaning and importance of a givenlegal document, he or she likely has the legal capacityto execute (to carry out by signing) it.Legal capacity is the ability to understand andappreciate the consequences of ones actions and tomake rational decisions.The requirements of legal capacity can vary from onedocument to another.A lawyer can help determinewhat level of legal capacity is required for a person tosign a particular document.Before a person with dementiasigns a legal document:Talk with the personFind out if the person with dementia understands thelegal document — and the consequences of signing it.Make sure the person knows what is being explainedand what he or she is being asked to do.Ask for medical adviceA doctor may be able to assist in determining thelevel of a persons mental ability.Take inventory of existing legal documentsVerify whether living wills, trusts and powers ofattorney were signed before the person was diagnosed.The person may no longer remember having completedthem. Even if legal documents were completed in thepast, it is important to review them with another personfor necessary corrections and/or updates.3
  • 5. As long as the person with dementia* has legalcapacity — the ability to understand and appreciatethe consequences of his or her actions — he or sheshould take part in legal planning.*While the following content and many of the definitions refer specificallyto the circumstances of dementia, these general terms may refer to otherlegal situations as well.4
  • 6. 2 legal documentsGuardianship/conservatorshipIf a person can no longer make his or her own financialand/or health care decisions,someone else may have tobecome the persons guardian (also known as a conservatorin some U.S.states).A guardian or conservator is appointedby a court to make decisions about the persons careand property.Guardianship is granted by the court when it finds thata person is totally or partially legally incapacitated.In thecase of dementia and its effect on the brain,legal incapacityrefers to the persons inability to make rational decisionsabout his or her care or property.Once a court determines that an individual is legallyincapacitated,it may appoint a guardian or conservator forthat person.A guardian has the legal authority to makedecisions about the persons care and custody.While the process varies from state to state,after a personseeking guardianship files a petition in court,the courtgenerally issues a summons (a notice to appear in court)and a copy of the petition (a formal application madeto a court in writing) to the person with dementia.Thepetition includes the name of the person who wishes to beappointed guardian.The person with dementia has an opportunity to object tothe guardianship.The court will hold a hearing at whichtime he or she (or another individual) can object.Couples who are not in legally recognized relationshipsare especially vulnerable to limitations regarding theability to make decisions for each other, or even toobtain information about a partners health status iflegal documents are not completed. These laws varyfrom state to state. Please look into your local laws.5
  • 7. RLiving willA living will is a document that expresses how a physicallyor mentally incapacitated person wishes to be treatedin certain medical situations.It is generally somethingthat an individual prepares and signs prior to his or herimpairment.In a living will,the person with dementia may state,among other things,his or her wishes regarding artificiallife support.A living will generally comes into play oncea doctor decides that a person is incapacitated and unableto communicate his or her desires regarding life-sustainingtreatment.Depending on the state in which an individualresides,the state may require a particular form for a livingwill,or it may be drafted by the persons attorney.Living trustA living trust is created by a person who has legal capacityand is capable of his or her own decisions.A living trustis another way for the person to give instructions formanaging property.The person who creates the trust (called a grantor ortrustor) appoints him- or herself (and possibly someoneelse) as trustee(s).If a single trustee is designated,the trustdocument should also specify a successor trustee,who willtake over when/if the initial trustee is unable to serve dueto incapacity or otherwise.A trustee is usually a person oran institution such as a bank.The trustee is responsible forcarefully managing the property (assets) of the trust.For the living trust to accomplish its goal,all assets shouldbe transferred to the trust.For example,a bank accountshould be changed from the individuals name to thename of the living trust.Depending on state law and an individuals personalcircumstances,a living trust may allow an estate to avoidprobate,i.e.,the process used by the court to distribute theproperty of a person who has died.A living trust may ormay not provide tax advantages.6
  • 8. Power of attorneyThe power of attorney document allows a personwith dementia (called the principal) to name anotherindividual (called an attorney-in-fact or agent), usuallya trusted family member, domestic partner or friend,to make financial and other decisions when the personwith dementia is no longer able to do so for him- orherself.The agent should be chosen carefully; it isrecommended that this individual have a thoroughconversation with the principal about what theresponsibility entails. In addition, a successor agent oragents should be named in the event the original agentis unavailable or unwilling to serve.With regard to individuals with dementia, power ofattorney documents should be written so that theyare “durable,” meaning that they are valid even afterthe principal is incapacitated and can no longer makedecisions for him- or herself. Unless a power ofattorney is irrevocable, it can be changed or withdrawnby the principal at any time.Power of attorney does not give the appointed person(agent) the authority to override the decision makingof the person with dementia (principal).The personwith dementia maintains the right to make his orher own decisions — as long as he or she has legalcapacity — even if the decisions are not what othersbelieve are good decisions.The agent is authorized to manage and make decisionsabout the income and the assets of the principal.This agent is responsible for acting according to theinstructions, and in the best interests, of the principal.Whats the difference between an agent and anexecutor? The powers of the agent (one who holds thepower of attorney) end with the death of the principal.An executors powers begin with the death of theprincipal once the will has been accepted by the court.7
  • 9. Power of attorney for health careA power of attorney for health care allows a personwith dementia to name a health care agent to makehealth care decisions on his or her behalf when he orshe is incapable of doing so.These decisions includechoosing: z Doctors and other health care providers. z Types of treatments. z Care facilities.For a person in the later stages of dementia, thehealth care agent may also make end-of-life decisions,such as providing nutrition through a feeding tube,or giving "do not resuscitate" (DNR) instructions tohealth care providers.WillThe will is a document identifying whom a personwith dementia has chosen as:1 Executor, the person who will manage the estate.2 Beneficiaries, who will receive the assets inthe estate.The executor named in the will has no legalauthority while the person is living.A will only takeseffect when a person dies.A will cannot be used to communicate health carepreferences. However, it can offer peace of mind thata persons wishes will be fulfilled upon death.While all people can benefit from having a will, itis especially important for a person with dementia.He or she should have a signed will in place assoon as possible, while he or she is still able to makedecisions for him- or herself. Please note that thevalidity of a will is dependent on state law.8
  • 10. 3. how to find a lawyerIt is a good idea to get legal advice and services froman attorney who specializes in elder law. Elder lawfocuses on guardianship, disability planning and otherlegal issues that typically affect older adults.If you have a family attorney, he or she may be ableto refer you to an elder law attorney. Your localAlzheimers Association office can also provide alist of elder law attorneys in your area.To locatethe Alzheimers Association office nearest you, call800.272.3900 or visit alz.org.Free legal advice may be available in your community.Contact your local Area Agency on Aging or theEldercare Locator at 800.677.1116 or visiteldercare.gov to find free legal resources.9
  • 11. 4. how to prepare for ameeting with your lawyerGather all documents relating to the assets of theperson with dementia ahead of time so you canshow them to the lawyer.Checklist for meeting with your lawyer:❑ Itemized list of assets (e.g., bank accounts,contents of safe deposit boxes, vehicles, real estate,etc.), including current value and the names listedas owners, account holders and beneficiaries.❑ Copies of all estate planning documents,including wills, trusts and powers of attorney.❑ Copies of all deeds to real estate.❑ Copies of recent income tax returns.❑ Life insurance policies and cash values of policies.❑ Health insurance policies or benefits booklets.❑ Admission agreements to any health care facilities.❑ List of names, addresses and telephone numbersof those involved, including family members,domestic partners and caregivers, as well asfinancial planners and/or accountants.10
  • 12. 5. what to discuss withyour lawyerBe sure to talk to your lawyer about these three keyissues and any other concerns you may have:1 Options for health care decision making for theperson with dementia.2 Options for managing the persons personal careand property.3 Possible coverage of long-term care services,including what is provided by Medicare,Medicaid, veteran benefits and other long-termcare insurance.11
  • 13. 6. terms your lawyer may useAgent: The person given legal authority to makefinancial decisions for the person with dementia(principal) through a power of attorney document,usually a trusted family member, domestic partner orfriend; see also health care agent.Artificial life support: Medical equipmentand other technology used to prolong the life ofa seriously ill person by sustaining essential bodyfunctions (e.g., breathing).Assets: Personal possessions of value, includingcash, bank accounts, real estate, vehicles andinvestments.Beneficiaries: The people named in a will orinsurance policies to receive the estate of the personwith dementia upon his or her death.Conservator: A person appointed by the courts tomake decisions on behalf of the person with dementia;referred to as the guardian in some U.S. states.Custody: Legal responsibility for a person.12
  • 14. DNR: Stands for “do not resuscitate” and refers to apersons instructions that, if his or her heart or breathingstops, the doctor should not try to restart it.Domestic partner: An individual who is part ofan unmarried heterosexual or homosexual cohabitatingcouple.This may be especially significant whenconsidering eligibility for spousal benefits. Definitionmay vary according to state and/or employer.Durable: When a power of attorney document isdurable, it is valid even after the principal can no longermake his or her own decisions.Execute: To legally sign or carry out alegal document.Executor: The person named in a will to manage theestate of the person with dementia upon his or her death.The executor of a will carries out the instructions of thedeceased as outlined in the will.Grantor: A person who arranges for his or her assetsto be transferred to another person or entity, for example,the grantor of the JohnW. Smith LivingTrust is JohnW.Smith; also called a trustor.Guardian: The person appointed by the courts tomake decisions on behalf of the person with dementia;referred to as the conservator in some U.S. states.Health care agent: The person given legalauthority to make health care decisions for the principalthrough a power of attorney for health care document;usually a trusted family member or friend.Legal capacity: The ability to understand andappreciate the consequences of ones actions and to makerational decisions.13
  • 15. Principal: A person who, through a power ofattorney document, legally chooses an individual tomake decisions on his or her behalf.Probate: The process used by the court todistribute the property of a person who has died.Summons: A notice to appear in court.Asummons is delivered to the person with dementiawhen a petition of guardianship or conservatorshiphas been filed on his or her behalf.Trustee: The individual or institution chosen tomanage the trust assets on behalf of the beneficiaries.Trustor: The person for whom a living trust iscreated; for example, the trustor of the John W. SmithLiving Trust is John W. Smith; also called a grantor.14
  • 16. 050912.01 770-10-0025quick tipslegal planningz Those named in the power of attorney documentshould have a copy of and access to the original.z The person with dementia should name a successor(back-up) agent for power of attorney in the eventthat the agent may one day be unable to act.z The person should consider a neutral third personto have power of attorney if those chosen maynot agree.z Once a power of attorney for health care documentand/or a signed living will is in place, give acopy to the persons physicians and other healthcare providers.z The person with dementia should decide if the agentwith power of attorney for health care has authority toconsent to a brain autopsy.This may vary accordingto state law.z Consider choosing an attorney or a bank to managethe individuals estate if the person lacks a trustedindividual with the time or expertise.The Alzheimers Association is the worlds leadingvoluntary health organization in Alzheimers care,support and research. Our mission is to eliminateAlzheimers disease through the advancement ofresearch; to provide and enhance care and supportfor all affected; and to reduce the risk of dementiathrough the promotion of brain health.Our vision is a world without Alzheimers .For information and support,contact the Alzheimers Association:800.272.3900alz.org© 2012 Alzheimers Association. All rights reserved.This is an official publication of the Alzheimers Association but may bedistributed by unaffiliated organizations and individuals. Such distributiondoes not constitute an endorsement of these parties or their activities by theAlzheimers Association.