By Teresa K. Bowman, Of Counsel
Getting a diagnosis of dementia or Alzheimer’s can be devastating for a family. In the past people were just labeled “old” or “forgetful.” It wasn’t discussed much that I remember growing up, but a lot has changed.
These days, dementia and Alzheimer’s is pretty much a topic you hear about, read about, and talk about frequently. Whether it’s what to eat to prevent it, or new drugs to treat it, it’s very much a part of our society. There are multiple dementiarelated illnesses, and other illnesses that can cause dementia symptoms. Some dementias cause a gradual decline, some move more quickly, some affect personality, and some, like Alzheimer’s, eventually lead to death. While the diagnosis itself can be confusing, there is also a lot of misunderstanding about dementia-related illness and what it means regarding the person’s legal capacity to conduct business, make medical decisions, and even create a will.
Let’s suppose Tom and Mary come to see me because Tom has been diagnosed with dementia. Maybe Tom was seen at our local Memory Clinic, one of 13 in the state of Florida, for an in-depth evaluation of his condition. He was told he has “mild cognitive impairment” and that he should see an elder law attorney to make sure his estate planning documents are in order. This doesn’t mean the physician thinks Tom is dying; it means the physician knows that as Tom ages, his cognitive impairment will increase the need for him to have someone who can make financial and medical decisions for him.
Having mild cognitive impairment, or a diagnosis of any type of dementia, does not mean the person lacks the capacity to create legal documents. In fact, I have created documents for clients in my office who are able to tell me clearly what they want in that moment but may forget what they told me the next day, or even in the next hour. The point is they may have poor memory, but they are still capable of expressing their wishes when asked. In later stages of dementia, clients may still have the capacity to discuss a power of attorney or a health care directive, but may not pass the cognitive test for creating a will.
Florida case law states that the capacity to create a will is determined at the time the will is executed. The person executing the will must be of “sound mind.” Again, in Florida case law, sound mind is determined to mean “the ability of the testator to mentally understand in a general way the nature and extent of their property, the relation of those to receive property under the will, and a general understanding of the practical effect of the will as executed.”
So, if at the time of execution, the client understands what assets they are passing upon death, can tell me who will receive those assets, and understands the implications of signing a will, they meet the test. There is even case law to support the idea that even a person with dementia who has been declared legally incompetent, can have a “lucid moment” and create a will.
A legal finding of incapacity takes place in a petition to determine incapacity filed in court by an interested person. The court proceeding is called guardianship, and both the person who filed the petition and the person alleged to be incapacitated must be represented by an attorney. There is an examining committee that must meet with the person and prepare a report for the judge as to their opinion of the person’s capacity. If all members of the committee find that the person lacks capacity, then the judge will find that the person is legally incapacitated and enter an order. However, even then a guardian may not be appointed. If there are documents in place to allow someone to manage affairs for the incapacitated person, such as a power of attorney and a health care directive, there is no need to strip the person of their legal rights and appoint a guardian. If found to be incapacitated, even if a guardian is appointed, the person could have a lucid moment and create a will.
Often I have clients who have a letter from their physician stating that their spouse or other family member is no longer able to make decisions regarding health care, or even manage finances. Putting this information in writing and in the patient’s medical record can trigger a health care surrogate’s authority to act, allowing the surrogate access to the medical records and the ability to speak directly to the physician. Other times the letter is used to allow the successor trustee under a trust to take over financial management of a trust account. However, this letter does not prove the person to be legally incapacitated, just unable to manage.
You may have heard the term “planning for incapacity.” No one plans to become incapacitated, but plans for the possibility and creates documents to avoid a guardianship should a time come when they need help with medical or financial decision-making.
Properly prepared and properly executed documents are like buying insurance. You hope you don’t need it, but you certainly don’t want to be without it if you do.
If you’d like help ensuring the security or your or a loved one’s future, there’s no better time than the present. McLin Burnsed’s elder law team can help you plan and initiate safeguards that will promote the best possible scenario, no matter what may come.
McLin Burnsed Attorney at Law
1028 Lake Sumter Landing
The Villages, FL 32162