Article written by Beth Ann Lawson, Esq.
As an attorney, I meet wonderful families in various stages of planning for the mental incapacity of a loved one. Some families are struggling with a current crisis with more limited legal options and possible court action. Some families are proactively forming a strategic life plan for future care of a loved while there are more plentiful solutions.
Over 1 billion people worldwide are age 60 or above. That number is expected to double within the next 30 years. However, longevity in years is not always accompanied by excellent mental health. Cognitive impairment, defined as a decreased ability to think and remember, can be a frustrating life situation as well as a very difficult legal situation for many families and caregivers.
Cognitive impairment is a thief. It can appear slowly or overnight. Life becomes more difficult, expensive and often exhausting for both the affected individual and the individual’s family. Cognitive decline can limit an individual’s ability to function in a way normally associated with increasing age. Yet many families find they can’t do anything for their loved one because they lack the legal authority to act.
Few family members are trained in dealing with unrestrained anger and emotional outbursts in a loved one. Dealing with delusions, psychosis, and other cognitive issues often skews a family’s hierarchies and interactions. Children may have to begin parenting their parents.
To effectively manage your loved one’s financial and medical affairs, written legal authority is imperative to avoid court intervention. Early legal planning helps reduce the uncertainty during an incapacity. While in good mental health, individuals and couples can implement legal documents to steward mental health care, thereby avoiding guardianships and conservatorships.
Powers of Attorney, Advance Medical Directives and Trusts, both Revocable and Irrevocable, can be put into place. All these documents appoint an agent, i.e., a “manager of your rights” to act immediately or in the future when you are unable act. The appointed individuals then step into your legal shoes and medical shoes. You will not be legally silent.
It is important to choose the right individual as your agent in every legal document. Your agents should see your money as what can make your life all that it was supposed to be rather than a “future inheritance.” These documents will help your life stay on the course you wanted.
The Power of Attorney is a powerhouse. It allows an agent to manage finances, and legal affairs. This person speaks for you as needed in legal and financial matters. Your bills will be paid. Your finances will be protected. And most importantly, the Power of Attorney will normally protect you from a guardianship and conservatorship.
The Advance Medical Directive allows a named individual to communicate with and manage medical processes for an incapacitated individual. A big plus in having an Advance Medical Directive is allowing contact with a doctor by your agent. If you are experiencing cognitive impairment, you may not be able to understand or recall the medical information given to you. You may not follow up on treatment as you can’t remember what was said, or you may have an internal resistance to being told that you may no longer be capable of managing your affairs. With your Advance Medical Directive, your agent can get first-hand medical information and create a comprehensive medical action plan.
With Revocable Living Trusts, a Trustmaker can preplan for cognitive impairment and say who is to handle their assets and how they are to be used. Your assets are not adrift during your incapacity.
With the Irrevocable Trusts, a family can do some strategic pre-planning to protect the home and other assets from the cost of a family member’s prolonged care. Pre-planning with trusts is an important factor in preventing you and your spouse from going broke while one of you is in a long-term care facility.
Life without mental clarity is a long and winding road for individuals and their family. Be prepared. Pack your travel bag with a Power of Attorney, Advance Medical Directive, and Living Trust(s). The trip will be better for you and the people who care so much about you. Travel safely! Give us a call today if you have any further questions regarding your estate plan.