With millions of people having a form of dementia across the U.S. and the world, Estate Planning attorneys need to assess their potential clients to ascertain whether they are still capable and should be given the opportunity to contribute to and have input in their own lives as well as the lives of those around them. It is important to understand their changing needs as their disease advances, but even those with the most severe cases can still take part in an important way in the world around them.
The term “lucid intervals” comes into play. These intervals are moments of clarity for people with degenerative brain diseases. In these moments of clarity, they may regain many of their memories and mental functions. It is important to not only recognize these moments but also to give them credence.
There is a study by the National Library of Medicine, which goes into the various levels of capacity people may exhibit and ultimately states that “Capacity to make one’s own decisions is fundamental to the autonomy of the individual.” Consequently, there should be a plan for the moments when capacity improves or stabilizes.
There are varying levels of capacity for those with degenerative brain diseases, and medical professionals and loved ones should play a role in recognizing those levels of capacity without bias.
For example, “sundowning” is the process of medical or psychological conditions worsening as the day goes on, which is essentially named for the time period when the sun goes down or after dusk. If a loved one experiences sundowning, should decisions made earlier in the day during the more “lucid” period be invalidated because of a later lack of clarity?
Florida families need to empower their loved ones by providing them with the proper channels to express themselves and contribute to their own lives. Awareness should be raised on the abilities the elderly adult or loved one retains while battling any form of dementia.
After a diagnosis of Alzheimer’s disease or another type of dementia, a family has much to process and consider. In addition to dealing with the emotions that reasonably flow from this diagnosis, families must also make arrangements with the diagnosed elder adult in order to make plans for their current and future needs.
This situation can appear over-whelming, however, it is crucial that a family uses the early stages of the disease to fully understand the diagnosed elder adult’s wishes and get their input for moving forward.
It is much easier for everyone to be on the same page regarding a Power of Attorney as well as a Last Will and/or Advance Directives long before it or they become necessary because obtaining said Power of Attorney as well as other documents when the elder adult in question is already well into the disease process is more time consuming and difficult.
A Power of attorney is a legal document which allows someone to act on behalf of someone else regarding healthcare or financial decisions. There are many types of powers of attorney, each of which serves a unique or specific purpose. However, a Durable Power of Attorney is the most common for elderly adults.
Selecting who has Power of Attorney is a weighty decision. By Florida law, the person who is selected is called the Agent. This person should be a trustworthy and competent adult who is willing and able to manage complex medical and financial decisions and responsibilities on behalf of the diagnosed or incapacitated adult (the Principal). A financial institution that has trust powers [like a bank or trust company], so long as it has a Florida location and is authorized to conduct business in the state of Florida, can also be named an Agent.
At times, families choose to split power of attorney duties so that no one person is in charge of every decision. In these cases, they divide duties into healthcare decisions and financial decisions, creating two powers of attorney, one for each category.
Ideally, elders or any adult planning on a power of attorney should name their trusted Agent and have the papers drawn up and executed prior to any medical crisis, including a dementia diagnosis. However, if a loved one has not yet been diagnosed with dementia, those family members together with the subject adult can work together to name an Agent and execute a valid the power of attorney.
In general, a person with dementia can sign a power of attorney if they have the capacity to understand what the document is, what it does, and what they are approving. Most seniors living with early stages of dementia are able to make this determination.
If there is no power of attorney designation, and the older adult is further along in the disease’s process, the matter can get more complicated. If an older adult is unable to understand the power of attorney document and process, the family will need to enlist the aid of the local court whereby a judge can review the case and grant someone in the family (or a court appointment) the designation of conservator or Guardian. A conservatorship or guardianship allows the person or public guardian named by the court to make decisions about the person’s finances or other decisions. A guardianship allows the person named by the court to make decisions about the person’s healthcare. This procedure may be burdensome but can become necessary and may be the only way to advocate for a loved one and their wishes.
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If you have any additional Questions regarding the foregoing or have any legal issue or concern, please contact the law firm of CASERTA & SPIRITI, in Miami Lakes, Florida.