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Important Legal Documents to Have in Place Before Dementia Sets In

Michael A. Siefert, P.A. May 23, 2023

Elderly Man Looking at NotesWatching a family member or loved one grow old can elicit complicated feelings as you help them navigate their changing abilities, both physical and mental. However, when this person is also suffering from a cognitive impairment like Alzheimer’s or dementia, there are other considerations to take into account, specifically the individual’s legal capacity to draft estate planning documents. 

If you have a parent or loved one who’s showing early signs of cognitive impairment and you would like to help them organize their legal documents before it gets worse, reach out to me, Michael A. Siefert, P.A., for help. I take pride in providing all my clients with personalized and knowledgeable legal guidance during these hard times. My firm helps those in Ocala, Florida, and throughout Marion County.  

Cognitive Impairment and Legal Capacity 

Central to understanding how you can help someone suffering from a cognitive impairment is understanding the term “legal capacity” and how it can affect estate planning. Essentially, in order for a person to draft or make changes to their estate plan, you must be able to show that they fully understand the decisions that they’re making and how these decisions will affect them later on.  

If it’s shown that they’re not able to comprehend the consequences of these choices, then their legal capacity will be called into question and the resulting estate planning documents can be invalidated in court. However, if they draft and sign these documents while they are still cognitively able, then they will be legally binding and will take effect either when they pass away or become incapacitated. 

An individual’s legal capacity diminishes when they have a cognitive impairment, and this can either happen slowly over several years or even decades, or it can happen rapidly. Diseases like Alzheimer’s and dementia affect each person differently, and there’s no way to tell in the beginning how fast the disease will take over. Because of this, it’s essential to start working with an estate planning attorney as soon as possible to get all necessary documents completed. 

Important Documents to Have in Place

Each person’s estate plan will look slightly different based on the scope of your estate and your long-term wishes. That said, there are a few legal documents to have in place before dementia sets in: 

  • Will: Perhaps the most commonly used estate planning document, a will can assign certain assets to be distributed to named beneficiaries upon your death, as well as name a legal guardian for any minor children or pets. Another important aspect of a will is that it allows you to name the executor of your estate. This person will be responsible for the administration of your estate, which will likely include the probate court. 

  • Durable Power of Attorney: A power of attorney can apply to both financial decisions and medical care. This document names someone who will become legally responsible for making financial decisions on your behalf or making healthcare decisions, including what kind of care or treatment you want, choosing certain doctors or healthcare facilities, or what kind of palliative care you want should you become incapacitated. 

  • Physicians Orders for Life-Sustaining Treatment (POLST) and Do Not Resuscitate (DNR): Those suffering from severe illnesses should write out a POLST, which can outline specific medical treatments you do or do not want. This document will be extremely useful for both your medical providers and the person you assign as your durable power of attorney. Many people also wish to have a separate DNR form, which needs to be done while you’re of sound mind and body. 

The Importance of Working With an Estate Planning Attorney

Legal planning for cognitive impairment is not easy, but it’s something that needs to be addressed sooner rather than later since these diseases can often progress rapidly. If you start these discussions early with your loved one, they’ll still be able to understand the issues, but they also may exhibit periods of fear and frustration. This is only normal, so bear in mind that you’ll need to be patient and take things one step at a time. A skilled estate planning attorney will have experience working with families just like yours and can guide you through the process no matter where you’re at.  

Your lawyer can also help you gather important paperwork and documents that you’ll need as part of the estate plan, secure them, and provide family members with copies. By taking proactive steps along with your attorney and under the advice of your loved one’s healthcare provider, you can ensure that all legal planning is complete before it’s too late. 

Rely on Compassionate Legal Guidance

If you’re in the Ocala, Florida, area and are struggling to help a loved one suffering from dementia, Alzheimer’s, or another cognitive impairment, call me, Michael A. Siefert, P.A., to schedule a consultation.