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Certainly, receiving a diagnosis of dementia does not immediately bring to mind a need to pursue legal planning, however it is important that legal issues be addressed sooner rather than later. There are a number of documents that someone with dementia should draw up and sign so that if his or her decision-making capability is diminished in the later stages of the illness, care and financial decisions are made by someone that he or she trusts.
The following legal documents should be written and signed as soon as possible after a person is diagnosed with dementia in order to protect the finances, health, and rights of the individual. In many cases, an elder law attorney and/or a notary public must write or verify the documents.
As we overcome adversity in our lives, we will become stronger. Then we will be better able to help others, those who are working, in their turn, to find a safe harbor from the storms that rage about them.
-- Joseph B. Wirthlin
DURABLE POWER OF ATTORNEY
Durable power of attorney is a type of advance directive, which is a written, legal document that spells out a person’s wishes if he/she is unable to make decisions. Durable power of attorney allows another individual, usually a close friend or family member of the person with dementia, to make decisions on his/her behalf upon incapacitation. It is also advisable to name a second person as a “back up” power of attorney in the event the first person named cannot act as power of attorney when needed.
This person may act in the best interests of the individual, making decisions about his/her finances, properties, and estate. Power of attorney must be established while the person still is able to make informed decisions, and it must be a durable power of attorney for the arrangement to still be valid once the person no longer has mental capacity. Power of attorney may or may not include a right to make decisions on healthcare, as outlined in the agreement. Sometimes this document is called a durable power of attorney for healthcare or medical power of attorney.
POWER OF ATTORNEY FOR HEALTHCARE/HEALTHCARE PROXY
This is a specific arrangement that names an agent, once again a close friend or family member, to make decisions about the healthcare of the individual. This agent is able to decide on the kinds of treatment the person will receive, who will provide the treatment, and when long-term care should be considered. The agent will also be expected to help make end-of-life decisions, such as resuscitation should a living will not be present.
A LIVING WILL
A living will is a written, legal document where individuals can specify what sort of medical intervention and treatments they want (or don’t want) if they are seriously or terminally injured or ill. Individuals can also specify if they want medical treatments to keep them alive, including feeding tubes and resuscitation. Living wills can spell out a person's wishes regarding complicated medical decisions at a later time when there is disagreement or confusion among family members. However, it should be noted that having a living will does not guarantee that doctors, hospitals, or family members will follow an individual’s wishes.
A LIVING TRUST
A living trust, referred to as an “inter vivos” trust, allows an individual with dementia to set up a plan for how his/her finances and property will be managed when he/she is no longer legally capable of doing so. A trust names “trustees”, which can be family members, friends, associates, or even financial institutions, to take over responsibility. Setting up a trust usually means putting all investments, accounts, and property into the name of the living trust as well. A living trust has more restrictions than a durable power of attorney and it is recommended that people complete both documents.
DO NOT RESUSCITATE ORDER (DNR)
A do not resuscitate order, also called a DNR, is also a type of advance directive. It is a medical order that states the individual does not want cardiopulmonary resuscitation (CPR) performed if his/her breathing or heart stops. A DNR is only relevant when it comes to CPR. It does not give any other medical instructions.
A will expresses how an individual wants any remaining assets and belongings handled once he/she is deceased, whether disbursed to individual beneficiaries or dissolved and given to charities. In setting up a will, an individual designates an executor who will oversee the disbursement of the estate. This executor does not have the ability to make decisions for the person while he/she is still alive. Wills are state documents, and laws applying to them vary from state to state.
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This website includes general information about legal issues, issues affecting seniors and developments in the law. Such materials are for informational purposes only and may not reflect the most current legal developments. These informational materials are not intended, and must not be taken, as legal advice on any particular set of facts or circumstances. You need to contact a lawyer licensed in your jurisdiction for advice on specific legal issues and/or problems.