Are Your Affairs in Order?
When a doctor gives you a terminal diagnosis, many times they say something like, “Get your affairs in order and enjoy life.” At that moment, you just nod and say, “Okay.” Then you go home and you then you stop to think, “Just what does that mean?”
Especially with dementia, it is imperative that you revisit all of your estate planning documents as well as some additional documents while the person with dementia is still has legal capacity – the ability to understand and appreciate the consequences of his or her actions. So what are these documents that you need to consider?
First, you will want to have Powers of Attorney (POAs) in place for both financial and legal decisions as well as a Healthcare Power of Attorney for medical decisions. Let’s start with the financial POA. This document will allow the person with dementia (the principal) to name another person (the agent) – usually a spouse or trusted family member – to make financial decisions as well as other legal decisions when the person with dementia is no longer able to make the decisions for themself. Not only should one person be named, but a successor agent should also be named in case the original agent is unable to serve.
The person with dementia can revoke the POA at any time as long as they still have legal capacity. The agent cannot override the principal’s decision as long as the principal still has legal capacity. Once the principal cannot manage their affairs and assets on their own, the agent is then authorized to do so in the place of the principal. It is up to the agent to act according to the principal’s wishes and in their best interest.
The next POA is the Healthcare Power of Attorney. This is similar to the financial POA except that it authorizes the agent to make medical decisions on behalf of the principal in the event they are unable to do so. These decisions include choosing doctors, treatments, and facilities. The health care agent can also make decisions such as whether or not to initiate life-sustaining treatments or do-not-resuscitate (DNR) orders. Even with a Healthcare POA in place, it is important to have these discussions with the principal in advance. Knowing their wishes regarding these decisions will make it easier for the agent when the time comes that a decision must be made.
You will want to make sure that all POAs are “durable” so that the authorization will continue even when the principal becomes incapacitated.
A living will is another type of advance directive in which the person can specifically state what treatments a person would or would not want including, artificial life support, comfort care, DNR, etc. Many states have specific forms to use for this information such as the POLST (Physicians Order for Life Sustaining Treatment) or the MOST (Medical Orders for Life-Sustaining Treatment.)
After the POAs are in place, it is important to have an updated will. This document will state who will manage the estate (the executor) and who will receive the assets of the estate (the beneficiaries.) The executor has no authority as long as the person is living. This is a very important document to have in place since, at death, the POA becomes null and void. If there is not a will in place, the state will decide how the estate will be distributed.
If the caregiver is not the agent for the POAs, you may want to consider giving your doctor and/or attorney permission to talk to the caregiver about questions regarding care, bills, or health insurance claims. Otherwise, the caregiver may not be able to get the necessary information when needed.
Finally, in addition to the legal documents, it is advisable to have conversations with the person with dementia about their final wishes and funeral planning while they are still able to verbalize their wishes. Favorite scriptures, hymns or songs, officiant, place, and where donations should be made are all possible things to discuss.
For more information on “Getting Your Affairs in Order” check out this article at the National Institute on Aging website.
All of these documents require knowledge of local laws as the rules regarding POAs, wills, and estate planning vary from state to state. Not only do the laws vary from state to state, but each estate and family is different. There are other issues that may need to be discussed with an attorney such as living trusts, guardianship, HIPAA authorizations, and planning to protect the assets if a Medicaid spend down becomes necessary.
It is highly recommended that you consult an attorney who is knowledgeable regarding elder law and estate planning. Spending the time and money early on will save you lots of possible heartache later. Several places to look for an elder law attorney include:
National Academy of Elder Law Attorneys
LawHelp.org has information about free or reduced cost legal aid programs
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