Does Dementia Preclude Estate Planning?

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Dementia often leads to mental incapacity.

Some cognitive decline is to be expected in aging.

For some, the progression is relatively mild.

For others, the decline is more severe and involves dementia or Alzheimer’s.

According to a recent Health News article titled “Can Someone With Dementia Sign Legal Documents,” the progression of these diseases can move quickly or relatively slowly.

Dementia has several stages.
Communicating wishes and signing estate plans should be done prior to the progression of dementia.

If loved ones are starting to show signs of cognitive decline, it is wise to discuss and address the status of their estate planning.

Once a diagnosis for dementia has been received, it is best to move swiftly into estate planning.

In the early stages of dementia, some patients are still capable of making decisions for themselves.

It is important for them to start while they are still able to understand the planning process and be involved in communicating their wishes.

Not knowing the wishes of a loved one can lead to feelings of guilt, worry, and confusion.

If you (or a loved one) were recently diagnosed with dementia, you should work with an experienced estate planning attorney or elder law attorney in your state as soon as possible.

These two attorneys will have slightly different emphases depending on your needs.

While estate planning attorneys prioritize incapacity and asset distribution planning, elder law attorneys also focus on “financing” incapacity through Medicaid planning.

Common incapacity documents include an advance health care directive, which consists of a health care treatment directive and a durable power of attorney for health care decisions, and Do-Not-Resuscitate (DNR) orders.

Certain states may also accept a Medical Orders for Life-Sustaining Treatment (MOLST) document.

Missouri does and Kansas does not.

What do each of these do?

Because those with dementia will eventually be incapable of making their own medical decisions, the advance health care directive provides guidance for treatment and appoints agents to make medical decisions.

The health care treatment directive allows individuals with dementia to outline their wishes on the use of specific medical procedures while they still have the legal mental capacity to explain these wishes.

It can address the use of blood transfusions, feeding tubes, dialysis, and other procedures.

With a Do-Not-Resuscitate order, a person can decline the use of CPR should breathing cease or the heart stop.

A doctor must also sign this order prior to its inclusion in the client chart.

Funeral planning should also be accomplished prior to later stages of dementia.

Individuals should outline wishes for their burial, cremation, funeral, or memorial services.

If plans already exist, information on burial plot and funeral homes should be communicated to loved ones.

Both dementia and estate planning are sensitive topics.

Working with an experienced estate planning attorney can help you and your loved ones navigate these challenging conversations.

Reference: Health News (Jan. 11, 2023) “Can Someone With Dementia Sign Legal Documents”

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