Worldwide, 55 Million people are living with Alzheimer”™s and other forms of dementia. Losing the ability to handle one”™s affairs is akin to losing one”™s autonomy and can make it difficult to complete daily personal and financial tasks. Most individuals, including my toddler and ninety-five-year-old grandfather, have the “I can do it myself” mentality. While this is not a negative trait, it can deter individuals from planning for the future. I find this ironic as planning for the future actually can provides more of an opportunity to stay in control than not planning at all.
Unfortunately, all too often I am contacted by children of an aging parent or loved one who has failed to plan and now has an Alzheimer”™s diagnosis with limited to no ability to communicate his or her wishes. This failure to plan often results in a time consuming, and costly, Guardianship proceeding where the parent is deemed legally incapacitated by the Court and the spouse and/or children are appointed as the Guardians of the person and property. Guardianships are often narrowly tailored to only allow the Guardian”™s authority to handle specific items on behalf of the incapacitated person, and as such, it can make it very difficult for the Guardian to adequately protect their ward”™s assets, move them to a location they might wish to be relocated to or handle their personal affairs. Court permission for many transactions and decisions is often needed as well.
As such, it is important to have conversations with your trusted loved ones as to what your financial and personal plan looks like. Advise them what you would (or would not) want your money invested in; what medical procedures you would (or would not) want done; and make sure they know what you envision your future should look like. For example, do you want to stay home, be in an assisted living facility, be moved to a warmer climate? While difficult questions to ponder, it is important for those you trust to know the answers to these questions in order to ensure they can fulfill your wishes.
In addition to speaking with your trusted loved ones, it is of utmost importance to execute advanced directives, including a General Durable Power of Attorney, Health Care Proxy and Living Will, to provide your trusted individuals with the authority to handle your affairs in the event of your incapacity. These documents can avoid the need for a Guardianship and allow you to be in control of whom you wish to handle your financial and personal affairs and what those individual(s) are allowed to do on your behalf.
A General Durable Power of Attorney (POA) is a document that allows you (the Principal) to appoint someone (an Agent) to make financial decisions for you. A POA will continue to be effective event after the subsequent disability or incapacity of the principal and can be broadly drafted to allow for the Agent to have broad gifting authority and other powers that can be beneficial for estate and tax planning and long term care planning of the Principal. The selection of the Agent(s) to be named under the POA is a decision of great importance and should be someone you have a great deal of confidence in and trust implicitly. It may also be beneficial that the individual(s) selected as Agent(s) have financial and/or business experience or a Co-Agent to create a system of checks and balances.
A Health Care Proxy is a document that similarly allows you to appoint an agent to make all health care decisions when you are no longer able to make these decisions yourself. The Health Care Proxy can specify which treatments and medical care you wish or do not wish to have administered. Under New York Law, only one health care Agent can be designated at a time, but alternates can be listed as well. You should discuss with your Agent exactly what your wishes are with respect to medical care and specifically your wishes with respect to end of life decisions (e.g., artificial hydration and the use of ventilators / respirators).
Lastly, a Living Will enables you to state your wishes regarding life prolonging medical treatments. While a Living Will is not statutorily recognized in New York, it is beneficial to help guide your health care Agent and doctors as to your wish to not be kept alive by extraordinary measures.
As outlined herein, I believe it is sufficiently clear that taking appropriate steps to plan for your future can allow you to retain a degree of control even after an Alzheimer”™s or Dementia Diagnosis.
Lauren C. Enea, Esq. is a Senior Associate at Enea, Scanlan & Sirgnano, LLP. She concentrates her practice on Wills, Trusts and Estates, Medicaid Planning, Special Needs Planning and Probate/Estate Administration. She believes that it is never too early or too late to start planning for your future and she enjoys working with individuals and families to ensure that their estate and long- term care plan best suits their needs. Ms. Enea is on the executive committee of the New York State Bar Association (NYSBA) Elder Law and Special Needs Section and is also the Co-Editor of the NYSBA Elder Law and Special Needs Section Journal. She is admitted to practice law in New York and Florida. She can be reached at 914-948-1500.
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