Legal Issues: Caring for Parents with Dementia

Alzheimer's disease, Parkinson's disease, and other disorders that cause dementia have become more common among aging adults. Often the adult children of dementia-affected adults end up making decisions on their behalf. It is important that family members understand the legal and financial implications of these decisions.

Any form of dementia is emotionally devastating and can present extraordinary challenges for older adults and their family members. It can make things difficult when drafting an estate plan or making health care decisions and financial decisions.

The following factors should be considered when assessing your loved one's mental capacity for making important legal, financial, and long-term care planning decisions.

Diagnosis of Dementia-Causing Illness or Signs of Dementia

Different states have different legal standards for determining the necessary mental competence 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.

You should consider entering into a durable power of attorney (POA) while your family member or loved one is still mentally competent in the eyes of the law. 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.

A durable power of attorney is impossible if the subject already suffers from mental incapacity. If this is the case, legal guardianship or conservatorship is necessary.

If you are mentally capable of making your own legal planning 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:

• Deeds and real estate
• Bank accounts
• Tax documents and financial planning documents
• Health 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 appointing a guardian or conservator. The court may not recognize a will signed or executed while the individual is suffering from dementia. In this case, a probate court 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 made 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 are often 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 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
• 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, living trust, or last will and testament if they are mentally capable.

Ability To Drive a Car or Perform Other Tasks

Adult 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 and legal capacity.

When Driving Is No Longer an Option

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. 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 potential care costs for a loved one with dementia. Medicaid or Medicare may help to some extent. By the time your parent needs assisted living or nursing home care, you should either have a durable power of attorney, guardianship, or health care directive in place.

The Alzheimer's Association provides various resources to help you find a professional caregiver near you.

Advance Directives: End-of-Life Preferences

It's always a good idea to explicitly state one's end-of-life wishes through an advance directive. 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 FindLaw's Health Care Decision-Making Issues page for more information about advance directives. Or talk to an elder law attorney to get legal advice. The National Academy of Elder Law Attorneys is also a great resource to obtain elder law legal services.