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Decisional Capacity and Dementia

NAELA version 3 16A diagnosis of cognitive impairment or even dementia does not mean that the individual has lost their ability to make or change estate plans. Start with the doctor who diagnosed them and ask if they can write a letter documenting their assessment.

We had an awesome geriatrician that got involved with my parents. He told me to get their plans updated immediately and wrote a letter stating that they still held decisional capacity. My parents did know and understand that we needed to update their plans.

Because we did not know how long we would need to care for them we insisted that all four of the adult children were named in the Durable Power of Attorney. The lawyer suggested against it stating that we should name one and have secondary, tertiary … However, we had that initially, and since my sister was listed as the primary, and me as the secondary, trying to get it recognized was headache inducing. I was the local adult child so needed to be the primary. I had to bring her resignation, then they often wanted to contact her. It just created more work when I was already overwhelmed.

We also had the benefit of caring for our parents in a unified capacity for nearly two years and have navigated a variety of bumps in the road. Should I move or die, I wanted to make sure one of my siblings could easily step in to help my parents.

Estate planning for incapacity is difficult and there are many landmines. I hope you find that you still have options even when dementia has been diagnosed. I also suggest you get a referral to a lawyer that specialized in Elder Law. You can do a search on NAELA.  It’s complicated and should your loved one lose the capacity to make decisions, the last thing you want are plans that fail. Recommended. 

4 comments on “Decisional Capacity and Dementia

  1. Good article. I went through this 5 years ago with my parents. My dad got very sick and passed within a month. While he was sick I moved to Orlando from South Florida to be with my mom and found out how bad her dementia really was. While dad was in the hospital, I hired a care management company, The Cameron Group, and an elder care attorney, Lynn Aust. I only have great things to say about them both. I could not have gotten through the situation without either one. We ended up moving mom into an ALF, and subsequently to a specialized dementia facility. The Cameron Group still helps out today!!

    • Oh, and we tried to get her MD to write a letter saying she was not capable of making decisions, as she was not, but the MD would not, even after mom made a huge outburst and ran out into the street etc. etc. from her office. We never thought about getting a note saying she was capable. Luckily the attorney, dealing with this all the time was able to assess mom and found her able to sign documents etc.

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