In the article that immediately preceded this one on this website, we talked about microneedle technology that is coming that will detect the presence of biomarkers that alert doctors at the very earliest stages of Alzheimer’s Disease.
The availability of early diagnosis means that patients and their families may begin planning earlier than ever before. Preparing for incapacity should be done while the patient has the legal capacity to express his or her wishes and fully understand the implications of the documents that are created to protect the patient’s interests and preferences.
In the absence of proper incapacity planning, a court process would be required to appoint financial and health care decision-makers. This process can be lengthy and expensive and expose the patient’s private personal, health and financial circumstances to the public record.
A durable Financial Power of Attorney (POA) lets you choose a reliable person as your Agent to handle your financial and legal affairs. You should consult with an Elder Law Attorney who can help you tailor your Power of Attorney to give an Agent the authority needed to carry out any financial and legal matters, including applying for Medicaid, if necessary.
A person with onset dementia should also make and share a comprehensive list of all of his or her assets, such as bank accounts, pension and retirement plans, investment accounts, real property and digital assets, with the agent named in the POA.
If the patient has a Will, it should be reviewed in light of the diagnosis. The circumstances may change some decisions in terms of the executor and beneficiaries.
It is also important to choose an Agent or Proxy who can act for the patient under a Power of Attorney for Healthcare. This person will have the power to make health care decisions and agree to care for the patient if he or she cannot do it.
Sometimes the same person will be selected as the Agent for both financial and health care matters. But this is not always the best option. Every situation is different. Generally the patient will know who among his or her potential candidates are good (and not so good) at these important roles.
A Living Will, also called an advance health care directive, records the patient’s preferences when it comes to end-of-life care. It must answer some tough questions about medical treatment: Does the patient want to keep living through any artificial means? Does the patient wish to give the brain or other organs for scientific research?
A Living Will gives the Healthcare Proxy written guidance about the patient’s care wishes, and can help the proxy feel more confident, especially if there is conflict among family members at an emotional time.
An Elder Law Attorney will also complete a General HIPAA Release Form, so the financial and health care agents, family members and caregivers can talk to doctors and attorneys when issues come up. Also, those who are authorized will be able to get access to medical records.
This access is very important and useful for things like getting second opinions or pursuing possible malpractice claims. The HIPPA release form is also needed to work with the health insurance provider. It should not be assumed that being a spouse or a descendant gives you the right to speak with medical providers.
Trusts are commonly used to manage assets for incapacity planning. A Fully Funded Revocable Living Trust can be created to address the management of the patient’s assets while he or she is living and to distribute assets postmortem according to the patient’s instructions.
As long as the patient has mental capacity, he or she is in charge as the original trust beneficiary and can make any changes wanted. Upon a determination of incapacity, the trust becomes irrevocable and continues to follow the patient’s wishes, even after death in terms of the distribution instructions. Trusts have the added advantage of being more easily accepted by banks and other financial institutions.
Those preparing for a situation where they will likely be incapacitated at some point in the future should also provide guidance regarding their Final Arrangements.
They should discuss with their family (and write it down) what, if any, kind of funeral service they would like and any other related arrangements such as whether they want to be buried or cremated. The more decisions made in advance, the fewer that will need to be decided later by family members when grieving their loss.
Planning for incapacity can be part of the process of coming to terms with a dementia diagnosis, both for the patient and his or her loved ones. By discussing the patient’s wishes in advance, it allows for control of the process in which the patient’s wishes are expressed and documented.