Information about types of legal documents and preparing for the future

When someone is diagnosed with Alzheimer's disease or dementia, a host of tough choices must be made. Who will oversee the person's finances and make decisions about medical care? Although these questions may not come to mind right after the diagnosis is made, this is the best time to find out the answers—when the person can still understand and communicate his or her wishes.

Below are a variety of legal tools that can make this task a lot easier, not only for the person with dementia but also for family and friends. Use them to play a proactive role in ensuring you or your loved one's wishes are properly carried out. Otherwise, you could be at the mercy of a court's decisions. State laws vary, so it is important to check with a person or website knowledgeable about the laws where you live.

Types of Legal Documents

Being prepared for the later stages of dementia involves spelling out in writing exactly how you or your loved one wants to be cared for and how financial assets will be managed and distributed. Following are the main types of paperwork that should be established.

Joint ownership. You might assume you can take control of all legal and financial issues when your loved one no longer can. However, that's not the case in every state or with accounts and documents in one person's name only. While the person with dementia is alive, a spouse or child often can't handle bank accounts, stock or bond transactions, and real estate or auto sales unless joint ownership is established first.

However, joint ownership also poses some disadvantages. If there's a bankruptcy or lawsuit, creditors of jointly owned property could place a claim on it; there may also be tax consequences for any financial gains. If these are a concern, a power of attorney may be a better option.

Advance directives. This is a general description for any legal document that specifies your wishes if you're unable to speak for yourself. There are two categories—living wills and power of attorney. It's best to have both.

Living wills establish preferences for medical treatment. Technically, a living will refers to end-of-life choices and is sometimes used as a synonym for an advance directive. A living will gives a person a chance to outline what life-prolonging procedures they would or would not want if they became incapacitated. For example, in the event that a person's heart or breathing stops, living wills can direct health professionals not to attempt cardiopulmonary resuscitation (CPR), which is known as a Do Not Resuscitate (DNR) order.

Living wills also may dictate that only comfort care be provided instead of life-prolonging treatments like antibiotics, artificial feeding, mechanical ventilators, or dialysis. Conversely, a living will can provide instructions to use all available treatments to sustain life. A living will is generally put to use in the advanced stages of dementia or Alzheimer's when the person cannot communicate his or her wishes or in the event of a coma, persistent vegetative state, or some other debilitating event like a stroke or car accident.

A power of attorney is one of the most flexible and widely used legal instruments. It allows you to select an "agent" or "attorney-in-fact" to act on your behalf in financial, medical, or other legal decisions while you are alive. There are several types of power of attorney documents. A conventional power of attorney goes into effect when you sign it but ends if you become mentally incapacitated. In contrast, a durable power of attorney stays in effect for your lifetime—even if you become mentally incapacitated. A springing power of attorney "springs" into being only when a particular event occurs—for example, when you are declared incapacitated. Only the latter two types of power of attorney make sense for people with dementia.

When these documents specifically cover medical concerns, they are sometimes called medical (or health care) power of attorney and the agent may be referred to as your health care proxy. This person has the right to access all your medical records and health information and to make decisions about your medical care. Some states provide for a specific durable financial power of attorney to act upon financial matters but not health issues.

Regardless of the type of power of attorney you choose, your agent should be someone you completely trust to handle your financial and health concerns, lives nearby, and is in reasonably good health. While it's possible to name two or more agents, it's not advisable, as any disagreements could set off a legal battle. However, it's important to name an alternate agent in case your first choice cannot serve.

Living wills and power of attorneys may go by different names depending on your state and particular needs. To download advance directives for your state, visit the website www.caringinfo.org/stateaddownload.

A standard will. Although a will is relatively easy to create, up to three quarters of Americans reportedly die without one. Wills are not just for the wealthy; they ensure that whatever assets you have will go to the people you want. Without one, a court will distribute your property according to state laws.

Some people supplement a standard will with an ethical will and/or letter of instruction. An ethical will expresses your values, hopes, lessons, forgiveness, and blessings for your family, friends, and community. A letter of instruction is an informal way of indicating your funeral or memorial service wishes, details regarding loans and accounts, and how you'd like your personal effects to be distributed. These aren't legal documents, but they can be an effective way to communicate your interests beyond your standard will.

Putting Legal Documents in Place

To make sure these documents meet state requirements and are worded in a legally effective way, it's best to seek out the help of a lawyer who specializes in estate planning or elder law . Alternatively, ask your doctor, a social worker, or family and friends for a referral.

Once the documents are written and signed, be sure to let anyone involved in the process—doctors, attorneys, friends, and family—know what steps have been taken and where the documents can be found. While it's okay to keep a copy of these documents in your safety deposit box, it's essential to also have them readily accessible, for example, in a clearly labeled file in your desk drawer, in case of an emergency.

If this paperwork isn't completed while the person with dementia is still capable, family members may petition a court for guardianship over an adult who is incapacitated. If the court decides the person in question is unfit to make decisions, his or her guardian will be assigned to handle family, financial, and medical issues, usually with some degree of court oversight. And if you're helping your loved one with these documents, why not complete a set for yourself as well? Joint ownership, advance directives, and wills are important for all older people to consider, so if you're somehow incapacitated you have a plan in place for your family and friends to follow.

Publication Review By: Peter V. Rabins, M.D., M.P.H.

Published: 21 Mar 2011

Last Modified: 01 Dec 2014