If you or a loved one has been diagnosed with dementia or Alzheimer’s disease, it is important to start your estate planning immediately. There are four important legal documents to help you once you become incapacitated, but if you don’t already have them in place, you need to act quickly after a diagnosis, or it could become too late.
Having dementia does not mean an individual is not mentally competent to make estate planning decisions. The person signing these four important legal documents must have “testamentary capacity,” which under Florida law means he or she must understand the implications of what is being signed. The standard in Florida is that a person understands the basic scope and extent of their assets, that they know who are the “natural objects of their bounty,” and that they understand they are providing for the distribution of their assets upon their death. Simply having a form of mental illness or disease does not mean that you automatically lack the required mental capacity. As long as you have periods of lucidity, you may still be competent to sign estate planning documents.
The following are the four important legal documents that are the most essential legal documents for someone diagnosed with dementia or Alzheimer’s Disease:
- Durable Power of Attorney. A durable power of attorney is the most important estate planning document for someone who has been diagnosed with Alzheimer’s disease or some other form of dementia. A durable power of attorney allows you to appoint someone to make decisions on your behalf once you become incapacitated. Without a durable power of attorney, your family would be unable to pay your bills or manage your household without going to court and getting a guardianship, which can be a time-consuming and expensive process. The durable power of attorney may be critical for someone on the verge of needing long term care. For instance, in Florida, if the person who is assisting you with your long term care planning may need specific authority stated in the durable power of attorney to sign irrevocable trusts on your behalf that are important for Medicaid planning purposes. Go here for more information about powers of attorney.
- Health Care Proxy.A health care proxy, like a power of attorney, allows you to appoint someone else to act as your agent for medical decisions. In Florida, the health care power of attorney is called a “Designation of Health Care Surrogate.” That legal document will ensure that your medical treatment instructions are carried out. In general, a health care proxy, or health care surrogate, takes effect only when you require medical treatment and a physician determines that you are unable to communicate your wishes concerning treatment. Go here for more information about the designation of health care surrogate.
- Medical Directive or Living Will. Medical directives and living wills explain what type of care you would like if you are unable to direct your own care. A medical directive can include a health care proxy or it can be a separate document. It may contain directions to refuse or remove life support in the event you are in a coma or a vegetative state or it may provide instructions to use all efforts to keep you alive, no matter what the circumstances. Go here for more information about living wills.
- Will and Other Estate Planning Documents. In addition to making sure you have people to act for you and your wishes are clear, you should make sure your estate plan is up to date, or if you don’t have an estate plan, you should draw one up. Your estate plan directs who will receive your property when you die. Once you are deemed incapacitated, you will no longer be able to create an estate plan. An estate plan usually consists of a will, and often a trust as well. Your will is a legal document that sets forth your legally binding statement on who will receive your property when you die, while a trust is a mechanism for passing on your property outside of probate. Go here for more information about estate planning with wills and trusts.
In addition to executing these four important legal documents for those with dementia or Alzheimer’s Disease, it is also important to create a plan for long-term care. Long-term care is expensive and draining for family members. Developing a plan now for what type of care you would like and how to pay for it will help your family later on. A qualified elder law attorney can assist you in developing that plan and drafting any necessary legal documents. To learn more about long term care planning, go here.