Did You Know

Some lawyers - called "Elder Law Attorneys" - specialize in senior clients and issues specific to the elderly. Visit this website to learn more:
National Academy of Elder Law Attorneys

Caregiver Story

My father saved all his important papers in his desk drawer, but nothing was organized. When I started taking care of him, I asked him to help me sort through everything. It took a long time, but it was worth it! Some documents were in places I never would have thought to look.

Legal arrangements documenting current and future plans should be made for all older people, including those with dementia. Legal issues to be addressed include naming beneficiaries in a will and deciding when and why medical treatment should be stopped.

Many legal documents must be signed by an individual with the mental capacity to make decisions and sign documents while understanding the implications. Therefore, when someone is diagnosed with dementia, amending existing legal arrangements and setting up new arrangements can become complicated. Revisions or drafts of new legal arrangements should be written as soon as possible after diagnosis so that the person still has the mental capacity to make sound decisions and can make his wishes known; wishes of a non-legal nature, such as preferred living situation and power of attorney, can be described at the same time.

Guardianship

After people with dementia no longer have the mental capacity to sign a legal document - understanding what it means and what its implications are - it is more difficult to set up a legal arrangement to help make decisions for them. For example, a loved one might refuse needed help but have serious problems with daily living. Guardianship is a legal arrangement that does allow caregivers to make financial, healthcare, and other decisions on behalf of loved ones who can no longer make decisions as a result of disability, incapacity, or mental illness.

Seeking guardianship can be a complicated and frustrating process, since it usually involves legal proceedings to establish that the individual is indeed incapable of making decisions for himself. Consider obtaining a lawyer in the state of the person with dementia who will be familiar with the laws of the state. In general, guardianship proceedings follow this general format:

  1. The caregiver or another individual files a petition to declare the incompetency of the person with dementia to the Superior Court clerk for the county.
  2. The clerk may require documentation from a doctor, social worker, psychiatrist, and/or another healthcare worker in order to establish whether a hearing is needed.
  3. The sheriff's office will serve a notice of the hearing to the person with dementia and the person filing the petition must also make sure that all family members are notified as well.
  4. An attorney may be appointed to represent the person with dementia and the hearing will allow any objections to or evidence for and against declaring the person incompetent.
  5. The clerk or a jury will look at the evidence and make a decision on whether or not the person is incompetent and then he or she will hear evidence and make a decision on who should serve as guardian(s) for the person.

Once designated, a guardian is usually able to make decisions about an individual's finances and personal health care and well-being, but the legal proceeding may choose to establish separate guardianships. Contact your local Area Agency on Aging or Alzheimer's Association in order to be put in contact with an elder law attorney, social worker, or another individual who can help you learn more about guardianship.

Descriptions of Legal Documents

The following legal documents should be written and signed soon after a person is diagnosed with dementia. These documents protect the finances, health, and rights of an individual with dementia. In many cases a lawyer and/or a notary public must write or verify the documents.

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 behalf. This person may act in the best interests of the individual, making decisions about his 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.

The Durable power of attorney designates an agent to make decisions on behalf of the individual.

Power of Attorney for Healthcare OR Designation of Healthcare Surrogate

Power of attorney for healthcare is a specific arrangement that names an agent, once again a close friend or family member, to make decisions about health care of the individual. This agent is able to decide on the kinds of treatment the person will receive, who will treat him, and when long-term care should be considered. The agent will also be expected to help make end-of-life decisions such as resuscitation, especially if there is not a living will in place (see below).

A power of attorney for healthcare designates an agent to make healthcare decisions on behalf of the individual.

Living Trust

A living trust allows an individual with dementia to set up a plan for how his finances and property will be managed when he is no longer legally capable of it. 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 designates a trustee or multiple trustees to manage an individual's finances, investments, and/or properties. It has more restrictions than a durable power of attorney, so many lawyers recommend that people complete both documents.

Living Will

A living will is another type of advance directive. It is a written, legal document where individuals can specify what sort of medical intervention 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 individual'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 will establishes in advance what the individual would wish regarding certain medical interventions and treatments.

Will

A will expresses how an individual would want any remaining assets and belongings handled once he 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 is still alive. Wills are state documents and laws applying to them vary from state to state.

A will establishes in advance what the individual would wish regarding his estate and designates an executor and beneficiaries.

Resources
Source: 
Alzheimer's Association
Description: 
This brochure emphasizes early and thorough legal planning, including tips on preparing for a meeting with your lawyer.
Source: 
Area Agency on Aging of Pasco – Pinellas, Inc.
Description: 
This web page describes common legal arrangements that are made when a loved one has dementia.
Source: 
National Guardianship Association
Description: 
This document outlines the different forms of guardianship, how they are established, and what the guardianship process means.
Source: 
National Institute on Aging (NIA)
Description: 
This resource list contains information about various organizations, brochures, and literature that are available to caregivers needing assistance with legal and financial matters.