Increased standards of living and medical advances in our country over recent decades have resulted in greatly increased life expectancies. Unfortunately, with these additional years comes the increased risk that a substantial number of us will suffer from some form of dementia-related illness or memory loss.
It is now estimated that 5.8 million Americans are currently living with Alzheimer’s disease and related dementia. If no effective cures are found, that number is expected to triple over the next thirty years. It is no surprise that individuals suffering from these conditions are worried about how they can maintain their own dignity through the progression of these diseases and how they can lessen its impact on their friends and families.
Realizing that there will be coming difficulties resulting from memory loss and lack of capacity, we owe it to ourselves and our families to plan while we are in good health and have the capacity to express our intentions and desires. It is important to start simple planning either before the onset of disease, or in the early stages of disease progression, in order to avoid more complex and costly alternatives, such as the court-directed conservatorships and/or guardianships discussed below.
Early Planning and Decision-Making Capacity
It is often difficult to ascertain when someone has lost the legal capacity to make decisions for themselves. It is important to understand that capacity is a legal standard and the diagnosis of dementia by a medical professional does not automatically equate to an inability to make all decisions for yourself. An individual with a mild dementia diagnosis, for example, may still have the ability to execute legal documents before his or her disease progresses.
To start, some basic estate planning tools can be used to ease the struggles associated with dementia-related diseases and preserve that person’s intentions for his or her friends and family, including powers of attorney, health care directives, and even a Provider Orders for Life Sustaining Treatment (also known as “POLSTS”) which requires a physician’s signature, may be appropriate.
When an individual has significant assets, property in multiple states, or complex family situations to deal with, more substantial, complex planning is generally advisable. Revocable or “Living” trusts are often an important part of a comprehensive estate plan and generally provide great flexibility for many important aspects of both personal decision-making and tax planning.
Differences between Guardianships and Conservatorships
When it is too late to take advantage of advanced planning, a court-directed conservatorship or guardianship may be an appropriate step to protect a loved one who is suffering from a dementia-related illness.
Simply put, a conservatorship is where a court appoints an individual or professional fiduciary to handle another person’s financial affairs. This person is known as the conservator. A conservator does not have the authority to make medical, housing, or other personal care decisions for the protected person.
In contrast, a guardianship grants an individual or professional fiduciary known as the guardian with the authority to handle medical, housing, or other personal care decisions. Under guardianships, the person in need of protection is referred to as the ward. Guardianships generally do not give the guardian any authority to handle the ward’s finances. However, in the event there is no duly appointed conservator of the ward’s estate, a guardian may have the power to approve or withhold approval of any contract, except for necessities, that the ward may wish to make, and also may have the power to apply on behalf of the ward for any assistance, services, or benefits available to the ward through any unit of government.
As lawyers and personal advisors, we have the ability to work with individuals in recommending and implementing a variety of legal strategies and tailored techniques that will help lessen the adverse impact of memory loss on clients and their families. We take pride in helping our clients and their families maintain their focus on what matters most and lessen the stress that can come with aging.
At Henson Efron, our attorneys have extensive knowledge and experience in estate planning, tax, and guardianships/conservatorships. We can help you respond to life’s changes in a way that helps protect the dignity of you and your loved ones.
If you would like to know more about the topics discussed in this article, please contact one of the attorneys on the Henson Efron Estate Planning Team.