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Legal Documents

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Legal documents help ensure that the wishes of the person with dementia are followed as the disease progresses and make it possible for others to make decisions on behalf of the person when he or she no longer can.


Power of attorney

As long as the person with dementia has legal capacity (the ability to understand and appreciate the consequences of his or her actions) he or she should take part in legal planning.

The power of attorney document allows a person with dementia (called the principal) to name another individual (called an attorney-in-fact or agent), usually a trusted family member, domestic partner or friend, to make financial and other decisions when the person with dementia is no longer able. The agent should be chosen carefully; it is recommended that this individual have a thorough conversation with the principal about what the responsibility entails. In addition, a successor agent or agents should be named in the event the original agent is unavailable or unwilling to serve.

With regard to individuals with dementia, power of attorney documents should be written so that they are "durable," meaning that they are valid even after the principal is incapacitated and can no longer make decisions.

Power of attorney does not give the appointed person (agent) the authority to override the decision making of the person with dementia (principal). The person with dementia maintains the right to make his or her own decisions — as long as he or she has legal capacity — even if the decisions are not what others believe are good decisions.

The agent is authorized to manage and make decisions about the income and the assets of the principal. This agent is responsible for acting according to the instructions, and in the best interests, of the principal.

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Power of attorney for health care

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A power of attorney for health care allows a person with dementia to name a health care agent to make health care decisions when he or she is no longer able. This type of legal document is also called an "advance directive."

Health decisions covered by the power of attorney for health care include:

  • Doctors and other health care providers
  • Types of treatments
  • Care facilities

For a person in the later stages of dementia, the health care agent also may make end-of-life decisions, such as providing nutrition through a feeding tube or giving "do not resuscitate" (DNR) instructions to health care providers.

It is important for the person with dementia to talk through his or her wishes regarding care with the chosen agent early on to make sure the agent understands those wishes and is willing/able to act on behalf of the person with dementia.

Living will

Once legal documents are filled out, the individual with dementia, the caregiver or a trusted family member, the attorney and the doctor should all have copies.

A living will is also a type of "advance directive" that expresses how a physically or mentally incapacitated person wishes to be treated in certain medical situations. It is generally something that an individual prepares and signs prior to his or her impairment.

In a living will, the person with dementia may state, among other things, his or her wishes regarding artificial life support. A living will generally comes into play once a doctor decides that a person is incapacitated and unable to communicate his or her desires regarding life-sustaining treatment. Depending on the state in which an individual resides, a specific form for a living will may be required, or it may be drafted by the person's attorney.

Standard will

The will is a document identifying whom a person with dementia has chosen as:

  • Executor, the person who will manage the estate
  • Beneficiaries, the person(s) who will receive the assets in the estate

The executor named in the will has no legal authority while the person is living. A will only takes effect when a person dies.

A will cannot be used to communicate health care preferences. However, it can offer peace of mind that a person's wishes will be fulfilled upon death.

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Living trust

A living trust is created by a person who has legal capacity and is capable of his or her own decisions. A living trust is another way for the person to give instructions for managing property.

The person who creates the trust (called a grantor or trustor) appoints him or herself (and possibly someone else) as trustee(s). If a single trustee is designated, the trust document should also specify a successor trustee, who will take over when/if the initial trustee is unable to serve due to incapacity or otherwise. A trustee is usually a person or an institution such as a bank. The trustee is responsible for carefully managing the property (assets) of the trust.

For the living trust to accomplish its goal, all assets should be transferred to the trust. For example, a bank account should be changed from the individual's name to the name of the living trust. Depending on state law and an individual's personal circumstances, a living trust may allow an estate to avoid probate, i.e., the process used by the court to distribute the property of a person who has died. A living trust may or may not provide tax advantages.

Guardianship / conservatorship

If a person can no longer make his or her own financial and/or health care decisions, someone else may have to become the person's guardian (also known as a conservator in some U.S. states). A guardian or conservator is appointed by a court to make decisions about the person's care and property.

Turning to the courts to appoint a guardian or conservator is not common, and often occurs when families are in disagreement about financial, legal and care decisions for the person with dementia.

Guardianship is granted by the court when it finds that a person is totally or partially legally incapacitated. In the case of dementia and its effect on the brain, legal incapacity refers to the person's inability to make rational decisions about his or her care or property.

Once a court determines that an individual is legally incapacitated, it may appoint a guardian or conservator for that person. A guardian has the legal authority to make decisions about the person's care and custody.

While the process varies from state to state, after a person seeking guardianship files a petition in court, the court generally issues a summons (a notice to appear in court) and a copy of the petition (a formal application made to a court in writing) to the person with dementia. The petition includes the name of the person who wishes to be appointed guardian.

The person with dementia has an opportunity to object to the guardianship. The court will hold a hearing at which time he or she (or another individual) can object.

Help Is available

Do you need assistance locating an elder law attorney? Start with these resources:

  • Use the online directory of the National Academy of Elder Law Attorneys.
  • Visit the Eldercare Locator online or call 800.677.1116.
  • Visit LawHelp.org to learn about free or reduced cost legal aid programs in your community.

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