By: Matthew D. Barry, Esq. Board Certified Specialist in Elder Law by The Florida Bar
Diagnosis of Dementia
Dementia is generally characterized by cognitive impairments (including memory loss, confusion, difficulty communicating, poor judgment or changes in mood or personality) that impair a person’s ability to perform activities of daily living. Dementia may have various causes such as Alzheimer’s disease, vascular dementia, or Parkinson’s disease to name a few. Unfortunately, dementia appears to be on the rise. According to the Alzheimer’s Association, between 2000 and 2015, deaths from heart disease decreased by 11% while deaths from Alzheimer’s disease increased by 123%.
When To Plan
Dementia (especially in its early stages) does not necessarily mean the diagnosed individual is incapacitated. Even after a dementia diagnosis, the individual may still have the ability to create or revise an existing estate plan. It is also important to develop a plan of action to properly address the person’s disability. Of course, the earlier an estate and disability plan is implemented the better. However, a large-scale study has demonstrated that many Americans are kicking the proverbial can down the road. In fact, only about 25% of U.S. consumers have completed advance directives for their health care. The top two reasons people gave for not having an advance directive were “I don’t know what advance directives are” and “my family knows my wishes.”
The Role of an Elder Law Attorney
An elder law attorney may assist a person facing a dementia diagnosis in a variety of ways. First, an elder law attorney can answer your questions about what advance directives are and provisions which are right for you. For example, a designation of health care surrogate may allow the person you designate to make health care decisions for you in the event of incapacity and place you in a skilled nursing facility. Or you may wish to instruct your surrogate to keep you at home (as opposed to a facility) as long as it is medically safe and financially feasible. Similarly, a durable power of attorney appoints an agent to make financial decisions for you and apply for important federal benefits, such as Medicaid nursing home coverage on your behalf.
A last will and testament and/or a trust can serve various purposes, including the disposition of assets upon the person’s death and appointment of a competent executor and/or trustee. A trust can be used to manage assets when a person becomes incapacitated.
It is important that your wishes are properly addressed in these estate planning documents so that your fiduciaries can carry out, and your individual family member understand, your
wishes. Who you appoint as your healthcare surrogate, agent under a power of attorney and/or trustee are important decisions which should not be made lightly.
Where to Begin
What Happens After Incapacity?
In the best case, the individual suffering incapacity will have already completed an up-todate estate plan that includes planning for health care, finances and long-term care. However, if the person has not completed these forms of planning, the remaining options may be few, possibly making it necessary to petition the court to appoint a guardian to make healthcare and financial decisions for the person. Under Florida law, a guardianship is a last resort when there are no less restrictive alternatives that will adequately address the problems that the individual is facing. Guardianship is restrictive because it involves removing some or all a person’s civil and legal rights. It can also be costly. Although guardianship sometimes becomes the only option, the better course is to avoid it by implementing an estate and disability plan before incapacity.
Matthew D. Barry is board certified by The Florida Bar as an expert in Elder Law. Mr. Barry is an associate attorney at Lyons, Beaudry & Harrison, P.A., 1605 Main Street, Suite 1111, Sarasota, Florida 34236; phone: 941-366-3282. He focuses his practice on guardianship law, wills, trusts and estates and public benefits (including Medicaid planning).