Also, not all memory loss is part of dementia or Alzheimer’s Disease. However, a vast majority of the more severe cases are. Therefore, it is essential that individuals and family members act early – including preparing an estate plan – before memory becomes a legal issue.
One Critical Flaw in Estate Plans Made in Plainview, NY
When a couple makes an estate plan, they often list a spouse as their beneficiary and sometimes the executor of their estate. They do this because at the time they draft their estate plan, both parties are of sound mind and have a legal capacity to do so. Unfortunately, years later one party could fall ill or suffer from a form of dementia, rendering them unable to fill their role. Without an alternate designated, the estate could find itself in court with parties battling to take over.
It is essential to plan, especially before memory loss or diseases like dementia take over. The sooner the estate planning starts, the more likely the person with the memory loss can participate and make decisions – and more likely the court is to honor those decisions.
Why Plan Now?
Making legal decisions, including an estate plan now, is essential for a few reasons:
- Planning early allows for the individual to express their wishes and be involved in the planning – including designating future care.
- Early planning will eliminate the stress of family members having to guess or make decisions on their loved one’s behalf.
- Starting early ensures the estate has time to sift through the problematic legal procedures and financial issues that come with long-term care planning, end-of-life management, and estate distribution.
When older individuals start the planning process, they need to ensure that their estate plan includes the core components, such as:
- Long-term care
- Financial and property plans
- Naming an agent and alternate agent
The Role of Capacity in Estate Planning
A person’s capacity plays a substantial role in estate planning. Once a person is legally incapacitated or cannot make decisions for themselves, they rely on documents pre-made in their estate plan to protect them. However, a loss of mental capacity can be quite subjective.
In situations where a person suffers an unexpected loss of capacity or has slowly diminished their capacity over time, the courts would consider the following factors:
- Can the individual remember details?
- Does the individual act out of character compared to the typical demeanor?
- Can that party recognize family members?
- Does the individual suffer from constant confusion and decreased attention?
- How difficult is it for the person to speak or follow through in a conversation?
- Is there a decreased appreciation for risks?
If a person fails the capacity test, then the courts may deem them incapacitated.
If a person is considered incapacity before they finished an estate plan, the documents and decisions they made will be subject to court scrutiny, and the final will could be disregarded entirely.
Therefore, attorneys urge their clients to start the process early. Dementia, Alzheimer’s Disease, and other memory-affecting conditions can strike without notice, and by the time the symptoms are recognized, it could be too late to create an estate plan.
How an Attorney Can Help
While certain documents could be completed without an attorney, it is best to consult one if you suspect that your mental capacity is declining, or you were recently diagnosed with Alzheimer’s Disease. Getting legal advice and services from a local estate planning attorney can be helpful, especially in complicated cases just like this.
Your attorney will discuss the key issues that come with a diagnosis just like this, such as:
- Your options for health care decisions and which party will make health care decision on your behalf.
- Your options for managing the property and personal care – and if you will have a separate party designated for that role.
- Your potential options for long-term care coverage, including veteran benefits, Medicare, or Medicaid qualifications.
5 Essential Tips for Better Planning with Memory Loss
It does not matter how severe the memory loss is now, or whether you suffer from forms of memory loss at all. The more prepared you are, the easier it will be for family members to help you, but also protect you from the endless scams out there that target aging individuals specifically.
Some key things to keep in mind while you work on a plan include:
- Hand Out Copies: Anyone you give a power of attorney designation to should have a copy of the document as well as access to the original – whether that means access to a safe deposit box or a code to an in-home safe.
- Name a Successor: No matter what the situation is, you need to provide a backup agent or successor to the original power of attorney. That way, if the original party cannot fulfill his or her duty, you have an alternative that was selected by you.
- Brain Autopsy: Some individuals may want a brain autopsy to identify what caused their dementia or to donate for research. If this is something you want to do, you will need to ensure the power of attorney with health care decision-making power does this.
- Health Care Providers: Give a copy of your living will to your health care providers so that they know which parties are authorized to make decisions.
- Attorney: Consider hiring an attorney to manage your estate if you do not have someone that you trust to handle the assets and personal finances.
Speak with an Attorney Regarding Your Care
Avoid the hassles of waiting until the last minute and speak with an attorney about your long-term care planning, wishes, and more today. Contact the Law Office of Andrew M. Lamkin, P.C. now for a free estate planning consultation at 516-605-0625 or request more information online.
Andrew Lamkin is principal in the law firm of Andrew M. Lamkin, P.C., where he focuses his practice in the areas of elder law, estate planning and special needs planning, including Wills and Trusts, Medicaid planning, estate administration and residential real estate transactions. He is admitted to practice law in New York and New Jersey.
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