Navigating Dementia Caregiver Estate Planning Part 2
Last week, we started our discussion on estate planning for a loved one with a dementia diagnosis, and what it means to protect their wishes. We covered crucial topics, including what it means to have mental capacity or be incapacitated, how dementia affects capacity for estate planning purposes, and the essential tools a person with dementia needs to create right away.
However, as dementia progresses, estate planning must become more proactive and strategic than ever to avoid court battles and conflicts. If dementia advances before planning finishes, a judge unfamiliar with your loved one’s wishes will decide asset and care management. Keep reading to learn what steps need to be considered when estate planning for someone with more advanced dementia.
Seek a Cognitive Evaluation
If your loved one’s cognitive capacity is in doubt, getting a professional evaluation is a wise and proactive estate planning step. Book an appointment with your loved one’s primary care doctor or a dementia specialist to evaluate their mental state and recommend their ability to make estate planning decisions. During the evaluation, the medical professional will interview your loved one, questioning them about their daily life, awareness of their surroundings, and responses to scenarios like a stranger at the door or a burst pipe at home. Your loved one doesn’t need to remember every detail about their life for the evaluation to be beneficial. The professional will prioritize your loved one’s capacity to analyze and make thoughtful decisions in different scenarios. For instance, they may forget the day of the week but recall not to open the door for strangers.
Receiving a doctor’s report affirming their cognitive ability to make estate planning decisions (especially when lucid) provides protection. But it also implies their ability to make decisions for their finances and healthcare. This can discourage future debates from third parties regarding your loved one’s ability to create a plan in the first place.
Encourage Private Meetings Between Your Loved One and Their Lawyer
Helping your loved one with appointments, especially due to hearing and memory issues, can become second nature. But as much as possible, allow your loved one to meet with their lawyer independently. A private meeting will provide them with the opportunity to express their wishes without external influence. Even if you have your loved one’s best interests at heart, they may not prefer your presence during meetings. Encouraging private conversations with with their lawyer helps prevent questions about your influence on their estate planning decisions. Ensure they have the opportunity to speak privately with their attorney, even if a full meeting alone is not feasible. Step out of the room while your attorney confirms their wishes. Make sure to record when they meet alone with their lawyer, and request their attorney to document it as well.
Make Sure Their Estate Plan Is Executed Carefully
Unfortunately, errors that occur at the time an estate plan is signed are common. Each state has its own laws governing estate planning document execution, including signing requirements and validation by witnesses or notaries. Failure to execute your loved one’s plan correctly may require your family to go to court to assess the plan’s validity. This also allows family members to question your loved one’s mental capacity for their planning.
It’s also essential to document your loved one’s capacity at the time the estate plan documents are signed. Ensure their lawyer thoroughly reviews the documents with your loved one before signing. Verify that the documents align with your loved one’s wishes and that they are creating the plan willingly. If you have concerns about other family members questioning your loved one’s estate planning decisions or mental state, request your loved one and their attorney to record the signing meeting. This can help dispel claims that your loved one was coerced into planning or didn’t understand what they were signing.
If your loved one received a dementia diagnosis and hasn’t addressed their legal matters, don’t despair – but act fast. Even in the advanced stages of dementia, individuals may have moments when they can participate in decision-making and estate planning. Due to the progressive nature of dementia, it’s crucial for your loved one to create an estate plan promptly. Planning sooner makes it easier for them to receive the necessary assistance as their condition advances.
If your loved one’s capacity is significantly reduced and estate planning is incomplete, your family must seek court guardianship. In this arrangement, the court appoints a guardian to make decisions for the person with dementia. This process can cause stress, and the court may appoint someone your loved one wouldn’t have chosen for asset and healthcare decisions.
Our Way To Help You and Your Loved One
To make sure your loved one’s wishes are documented before it’s too late we invite you to book a call today. Our team provides compassionate guidance and legal expertise to ensure the well-being and wishes of your loved one are preserved.
Remember, when it comes to estate planning for dementia, we’re here to help you every step of the way. Let’s protect your loved one’s wishes together.
This article is a service of the Law Office of Aisha M. Williams, APC, serving San Diego, Carlsbad, Escondido, and all of California. We don’t just draft documents. We ensure you make informed decisions about life and death for yourself and the people you love. That’s why we’ll start you with a Family Wealth Planning Session, during which you will get more financially organized than you’ve ever been before and make all the best choices for the people you love.
We created this material solely for educational and informational purposes. It does not serve as ERISA, tax, legal, or investment advice. Should you need legal advice tailored to your specific needs, you must seek such services independently.