Alzheimer's disease, Parkinson's disease, and other disorders that cause dementia have become more common among aging adults.
While any form of memory loss is emotionally devastating for everyone involved, dementia can present extraordinary challenges for older adults and their families. It can make decisions difficult when drafting a will, making health care decisions, or taking care of other legal and financial matters.
Often the children of dementia-affected adults end up making decisions on their behalf. But it is important for family members to understand their actions' legal and financial implications.
The following factors should be considered when assessing your loved one's mental capacity for making important legal, financial, and health-related decisions.
Diagnosis of Dementia-Causing Illness or Signs of Dementia
Different states have slightly different legal standards, or tests, for determining the mental competence necessary to enter into legal agreements. Typically, as long as dementia is minor or nonexistent, a person in the beginning stages of a dementia-causing disorder will be deemed mentally competent in the eyes of the law.
An example is an individual diagnosed with Alzheimer's but still mentally competent in the eyes of the law. You can consider entering into a durable power of attorney. This allows a trusted individual to make legal, financial, and healthcare-related decisions. They can also sign legal documents on an older adult's behalf (which will be needed once dementia sets in).
The durable power of attorney is impossible if the subject is already mentally incompetent. Then legal guardianship (a much more complicated process) is necessary.
If you are mentally capable to make your own legal documents, you can DIY power of attorney documents. You can also help a loved one make their documents from home.
Existence of a Written Will
If your loved one does not have a will, it is always a good idea to draft a will in anticipation of the future onset of dementia. This also is a good time to create an inventory of all assets and liabilities, such as:
- Bank accounts
- Tax documents
- Insurance policies
This is also an opportune time to tie up any other contractual and/or financial loose ends.
If an older adult doesn't have a will and exhibits clear signs of dementia, you should take action immediately. You may need to consider a guardianship. The court may not recognize a will signed or executed while the individual is suffering from dementia, so the state will handle the individual's estate in the absence of a will.
If they already have written and signed a will, changes made by someone deemed mentally incompetent may not be valid. If the courts find the changes invalid, any action or changes must be by a guardian or someone with a power of attorney.
Capacity to Make and Execute a Will
The mental ability to make and execute a will is called "testamentary capacity." Wills often are challenged when it is suspected the "testator" -- the person who signed the will -- lacked testamentary capacity at the time (see Reasons to Challenge a Will for more details).
Statutes and case law may vary among different jurisdictions, but testamentary capacity generally requires that the testator was aware of the following when signing the will:
- The extent and value of their property
- Those who are the natural beneficiaries of their estate (next of kin)
- The disposition they are making (in other words, they must have the ability to make a reasonable judgment based on the elements listed above)
Your loved one can always DIY a living will or last will and testament if they are mentally capable.
Ability to Drive a Car or Perform Other Tasks
Grown children of older adults may start to worry about their parent's ability to perform common tasks like:
- Safely driving a car
- Entering into contracts
- Executing financial transactions
- Engaging in other activities that may prove treacherous if done with a diminished mental capacity
Depending on the situation, you may need to obtain a formal assessment of your parent's mental competence.
When Driving Is No Longer an Option
Determining mental competence is much more difficult for driving an automobile. In most states, the only legal standard for maintaining a driver's license is to complete an application and pass the vision test. Older adults exhibiting signs of dementia usually are not restricted from driving at the administrative level. This means the family typically has to take a more active role in enforcing a no-driving decision.
Many states, including New York and Florida, have programs designed to help the doctors and families of adults with dementia make such determinations. Some states also require a driving test for mature drivers (the specific age is set by state law). A mature driver's license typically has more frequent renewal requirements and doesn't allow mail-in or electric renewals.
Check with your state's driver's licensing-issuing agency, typically the DMV, for more information.
Help With Daily Living Activities
Make sure you evaluate the potential cost of caring for a loved one with dementia. Insurance and/or public services may help to some extent. By the time your parent is in need of daily assistance, you should have either a durable power of attorney or guardianship in place.
The Alzheimer's Association provides various resources to help those caring for Alzheimer's patients.
Advance Directives: End-of-Life Preferences
It's always a good idea to explicitly state one's end-of-life wishes (called "advance directives"). Emotions may otherwise overshadow a parent's wish to not be kept alive with a feeding tube, for example. Such end-of-life issues may need to be raised periodically as situations change. It is crucial to have these decisions spelled out before dementia sets in.
See "Health Care Decision-Making Issues" for more information about advance directives, or talk to an Elder Law attorney to get answers.