Elder Law Issues and Dementia

February 7, 2011

Planning for Disability:
Better to have a plan and not need it than to need it and not have it.

When it is clear that a loved one’s memory loss and impaired judgment go beyond “normal aging,” what steps, besides seeking medical advice, can we take to preserve as much dignity as possible for that person, and help caregivers cope as well? A consultation with an experienced elder law or estate planning attorney can often help families cope. Certain documents are vital, though no document will prevent all problems. Important as wills are, they protect heirs. Ideally, every adult would not only have a will, but at least two of the following documents:

Durable Power of Attorney (for financial matters)
Advance Health Care Directive and/or
Durable Health Care Power of Attorney (for health care decisions), and possibly
HIPAA Authorization  (allows providers to release personal, private medical
information to people named in the document)

Each of these documents provides for appointment of a trustworthy person to make financial or health care decisions if the person signing them becomes unable to act on her own behalf.

What is “HIPAA”? The Health Insurance Portability and Accountability Act of 1996 included prohibitions against disclosing personally identifiable medical information without authorization. Federal regulations became final in 2003. “HIPAA” disclosure language should be included in financial powers of attorney and advance health care directives. A separate, shorter document is not required but can be useful, since not every medical provider needs or wants a copy of one of the longer documents.

Financial Directives. A Durable Power of Attorney names someone to make financial decisions and take care of business matters such as paying bills, managing bank accounts if you become unable to manage your own business effectively. What makes the document “durable” is that it remains valid even if you become incapacitated.

The Agent (“Attorney in Fact”) should be (a) reasonably available, (b) known to the person executing the Power (the “Principal”) for a long time, and (c) must have demonstrated over time that he or she is trustworthy. This person need not be a financial genius, but his background should reflect responsibility and good judgment as well as integrity. It is possible to appoint two people as joint agents if they have demonstrated that they can work well together, but joint appointments can lead to confusion

Depending on the complexity of the Principal’s affairs, the document might be three or four pages, or ten or fifteen. Alabama’s Durable Power of Attorney Act does not include a suggested form. Most attorneys have several standard forms, but the form should be tailored to the specific needs of the person executing it.

Health Care Directives. The legislature revised Alabama’s Natural Death Act in 2001, and included a form Advance Health Care Directive. No document is perfect, but Alabama’s is good. It has two parts, and a “Declarant”, or person who signs it, can execute either part alone, or both parts.

The Living Will section allows a competent adult to state in advance what care he would want if two doctors certify that death is imminent, or the individual is in a state of permanent unconsciousness, and further efforts to cure or improve the condition would be futile. The person executing the document may state whether under those conditions he would or would not want treatment to maintain his body past the point that the body can maintain itself. The law requires that comfort care be maintained, regardless of the patient’s choices about efforts to cure or improve her condition.

The Proxy Appointment section of the Advance Directive allows the person to name a trusted person to make end-of-life decisions for her, if and only if two doctors have stated on her medical record that she is terminally ill or injured, or permanently unconscious. The person signing the document may state whether the proxy must follow the instructions in his Living Will (if he executed that part), or should make the final decision based on the circumstances at the time. One may also appoint an Alternate Proxy in case the first appointee is unable or unavailable. If there is more than one reliable person available, it is wise to appoint an alternate.

The revised Natural Death Act also provided for a competent adult to execute a Durable Health Care Power of Attorney. It is similar to the Proxy, but it is more detailed and perhaps more flexible. No statutory form is provided, but the documents must meet certain requirements outlined in the Natural Death Act and also in the Alabama Durable Attorney Act. Do not use a document from another state. All states have provided a form for its citizens to document their end of life wishes, but although there are similarities, a form from another state may not meet all the Alabama requirements.

Do we need an attorney? It is not necessary to have an attorney to execute the Advance Directive, but it is helpful to have the guidance of someone familiar with the documents. It is preferable to have an attorney for a Durable Power of Attorney (business) and a Durable Health Care Power of Attorney. However, you can review sample health care forms and think about your own wishes in advance. The statutory Advance Directive form can be found on the web site of the Alabama State Bar (alabar.org) and on the National Hospice and Palliative Care Association web site (caringinfo.org). Both health care forms can be found on the University of Alabama Law School Elder Law Clinic site (uaelderlaw.org).

Does a diagnosis of dementia automatically mean the person cannot execute valid advance directives? Not necessarily. It depends on how far advanced the disease is, how it has affected the particular person, and what kinds of abilities he retained. It is not necessary to be able to launch a space ship in order to articulate the kind of care one wants. The level of capacity required to execute a Will is low. While the capacity needed to express preferences about vital health care decisions or appoint a financial agent is higher, it is possible for a person unable to safely use a gas stove to still be able to communicate long-held convictions about types of care, or who he would want to pay his bills. Expressions consistent with statements and actions at a time when the person was clearly competent are likely to be reliable.

What if the person simply does not have the needed capacity to make these decisions? On the other hand, the point at which a declining individual can make a knowing and voluntary decision about the future may have passed. An experienced elder law or estate planning attorney should be able to help make the determination, or at least help you decide whether to seek further testing.

Guardianships and Conservatorships:  If an affected person can no longer manage, and it is necessary for someone to have access to assets or to make health care decisions, then it is time to file a petition in the probate court where the person lives, and have a guardian, conservator, or both, appointed. A guardian can make health care decisions, but a conservator is needed for financial management. In some cases, it is possible to have a conservator appointed for just one transaction (such as sale of a house or access to some other asset). Otherwise, the conservator will have to make periodic accountings to the court, and maintain a bond, which can be expensive. You will need an attorney to help with this process. While it is good to have these legal proceedings as a safety net, it can be expensive, painful, time-consuming alternative usually avoided by planning ahead.

Jo Alison Taylor, J.D. is co-author with Hugh Lee of “Alabama Elder Law,” a comprehensive elder law resource. She is former director of the Elder Law Clinic at the University of Alabama Law School and former chair of the Elder Law Section of the Alabama State Bar. E-mail: jotaylor1772@charter.net.

3 Comments

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3 Responses to “Elder Law Issues and Dementia”

  1. Linda Pennington says:

    I’m trying to protect myself & our assets. My 72 yr. old husband, a diabetic for 53 years, 5 strokes, blood clot in brain, and many major health problems filed for divorce. He was depressed & under psychiatric care for many years. I believe he has Dementia, but can not prove. My daughter & his brother are after what is left of inheritance bal. $100,000. Tried to have him evaluated – it was done on 3 day basis and no medical records sought. Husband is aware of his health issues. Husband’s attorney wanted divorce. Husband had considered seperation or nursing home. I quit my job, took early retirement as he could not be left alone (according to Clinical psychologist.) Husband stated I struck him one time with a shovel, but reallying doesn’t remember. I have never abused him. Caring for him has destroyed my health & daughter intervened to keep us apart before his demands totally destroyed me. And, on top of everything, Judge J. Donald Banks, who goes to sleep on the bench and is very bias against women, has given my husband everything he asked for. He didn’t even go with state law. I am appealing. My first attorney withdrew and he is in awe of other attorney. Judge is making sure both attorneys made plenty of money off of our case. I have just tried to protect both of us. Marriage for 17 years. Didn’t know husband had been in a psy ward and discharged from Navy years prior. This was his 4th marriage & my second. Tried using my Dual Power of attorney and it was mocked by physicians and his attorney had it voided. Can’t afford much more in legal fees. need help desperate so I can keep the house as I don’t have anywhere to go and he can’t stay in house alone. My daughter would like the house, she has had us finance her for several years, private school for grands, hair cuts, clothes, help get her a nicer house (several times) She takes advantage of my husbands generosity. Any advice appreciated. Case of the mentally incapacited spouce turns agains the caregiver.

    • Ellen Potts says:

      I don’t know who you have been seeing, but you need to see an Elder Law attorney certified in that area by the state bar association. In our community there is a free federally-funded Elder Law clinic at the local law school. After a very well-respected local attorney made an awful mess of my father-in-law’s estate, the Elder Law clinic was able to straighten things out — and it was free. Call you local bar association or your local Area Agency on Aging to get advice on what services are available in your area. I’m so sorry you are in such a mess!

  2. web site says:

    You require a Will to make certain your last desires are understood and followed.

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