Our firm, which practices Elder Law, is about so much more than planning for what happens to your “stuff.” We work to help our clients live their best lives.
Dementia is the third most frequent cause of death after heart disease and cancer. That ranking for dementia seems to be climbing over time. The most common type of dementia is Alzheimer’s disease; but other types include vascular dementia, Lewy body dementia, and fronto-temporal dementia. Dementia is not a part of normal aging. The risk factors for dementia are age, family history, race/ethnicity, poor heart health, and traumatic brain injury.
Age is the biggest risk factor.
Age Percentage of Americans with Alzheimer’s
85 and older 32%
People younger than 65 can develop Alzheimer’s, but it is much less common, and the prevalence is uncertain. Accordingly, an estimated 5.8 million Americans have Alzheimer’s today and that number is projected to grow to 13.8 million by 2050. Realistically, therefore, you should take dementia into account when making long term plans for yourself and your family.
There are planning documents that will help you deal with the possibility of dementia, and other illnesses. They are called “powers of attorney,” and they appoint someone, your “agent,” to make decisions about healthcare and financial matters when you are unable to make those decisions for yourself. They are sometimes called “durable” powers of attorney because they are effective even if you are mentally incapacitated—exactly the point when they are needed.
What happens if you fail to put these documents into place and you have dementia? If you have assets in your name alone, your family members will not be able to access them. Banks and financial institutions may refuse to let your family even know the amount in your accounts. Healthcare providers may refuse your loved ones access to your medical records. Medical decisions may be delayed. Someone that you might not have chosen may be appointed by the hospital as your surrogate to make healthcare decisions for you.
The legal consequences for your family could be extremely burdensome. Your family may have to hire a lawyer to understand the situation and to file a petition for a “conservator” to be appointed for you. Once the petition is filed, the court appoints another lawyer called the “guardian-ad-litem.” The task of the guardian-ad-litem will be to interview family members, doctors and other witnesses to learn whether you need a conservator and, if so, who should serve. The guardian-ad-litem is impartial and investigates as the “eyes and ears of the court.” After completing the investigation, he or she prepares a report and files it.
But if you have the capacity to say: “I don’t need a conservator” (even if you do) a third lawyer will be appointed to serve as attorney-ad-litem to present your side of the case to the judge. After all, the law can’t take away your rights to control your property and your health care without due process and a hearing. In order to appoint a conservator, the judge must find at the hearing by “clear and convincing evidence” that you are disabled and in need of assistance from the court.
I hope you can see the lawyers, the dollars, and the stress on your family adding up!
If you have any trustworthy family or friends there is no reason to hesitate in creating a plan that will protect you and them from hassle and expense. A part of that plan should be to appoint agents to make decisions about you healthcare and your property if you cannot.