3 Sep 20220 Comments
All too often, I am contacted by children of an aging parent or loved one who hasn’t planned ahead and now has an Alzheimer’s [or other dementia] diagnosis with limited to no ability to communicate his or her wishes.
This failure to plan often results in a time consuming and costly Guardianship proceeding, where the parent is deemed legally incapacitated by the Court and the spouse and/or children are appointed as the Guardian(s) of the person and property. Guardianships are often narrowly tailored, allowing the Guardian to handle only specific items on behalf of the incapacitated person. This can make it very difficult for the Guardian to adequately protect their ward’s assets, move them to a location they might wish to be relocated to or handle their personal affairs. Court permission for many transactions and decisions is often needed as well.
While difficult to ponder, it’s essential to discuss with your trusted loved ones what your financial and personal plan looks like, and how they can fulfill your wishes. Advise them what you would (or would not) want your money invested in; what medical procedures you would (or would not) want done; and make sure they know what you envision your future to look like. For example, do you want to remain in your home or move to an assisted living residence? Would you prefer to live in a warmer climate?
It is also of utmost importance to execute advanced directives, including a General Durable Power of Attorney (POA), Health Care Proxy and Living Will—to provide your trusted individuals with the authority to handle your affairs in the event of your incapacity. These documents can avoid the need for a Guardianship and allow you to be in control of whom you wish to handle your financial and personal affairs and what those individual(s) are allowed to do on your behalf.
A POA is a document that allows you (the principal) to appoint an agent to make financial decisions for you. It will remain in effect even after the subsequent disability or incapacity of the principal and can be broadly drafted to allow for the agent to have broad gifting authority, and other powers beneficial for estate and tax planning, and long term care planning for the Principal. The selection of the agent(s) to be named under the POA is a decision of great importance and should be someone you have a lot of confidence in and trust implicitly. It may also be beneficial that the individual(s) selected as Agent(s) have financial and/or business experience or a co-agent to create a system of checks and balances.
Similarly, a Health Care Proxy allows you to appoint an agent to make all health care decisions when you are no longer able to make these decisions yourself. It can specify which treatments and medical care you wish or do not wish to have administered. Under New York Law, only one health care agent can be designated at a time, but alternates can be listed as well. You should discuss with your agent exactly what your wishes are with respect to medical as well as end of life decisions.
Lastly, a Living Will enables you to state your wishes regarding life prolonging medical treatments. While a Living Will is not statutorily recognized in New York, it is beneficial to help guide your health care agent and doctors as to your wishes to be (or not to be) kept alive by extraordinary measures.
Taking appropriate steps to plan for your future can allow you to retain a degree of control even after an Alzheimer’s or dementia diagnosis.