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Advance Directives

My mother was recently diagnosed with dementia.  My father is devastated and very worried about his ability to manage her care financially? What do we need to do?

The most important documents that any of us can have in place in the event of illness are advance directives. The term "advance directive" includes the general durable power of attorney, the health care power of attorney and the living will - documents that appoint a decision-maker. Through the general durable power of attorney, you may appoint someone to manage your assets and financial affairs in the event that you are unable or unwilling to do so. The health care power of attorney permits you to name the person who will make your health care decisions in the event your physician determines that you are no longer capable of understanding treatment options in order to give consent to the same. The living will directs your physician regarding end of life decision-making.

The general durable power of attorney gives the person you name as your agent very broad authority to manage your assets. The document can be drafted to "spring" into effect when needed or can be drafted to be immediately effective. Although many people are reluctant to give anyone authority to manage their property, the alternative to a power of attorney is much less attractive. Without an adequate power of attorney in place, the only option for managing your assets in the event of your incapacity may be guardianship. Appointing a guardian to manage and protect your assets requires a hearing before the Clerk of Court to have you declared legally incompetent, making your private tragedy a matter of public record.

In our office, we usually counsel clients to rely on their health care power of attorney instead of executing a living will. The living will is a very narrow document that may authorize your physician to withhold or discontinue extraordinary means and artificial nutrition and hydration in the event you are "terminal and incurable" or in a "persistent vegetative state." Like the health care power of attorney, the living will only speaks if the patient can no longer give informed consent. Pursuant to the living will, decision-making authority is delegated to the treating physician, who may or may not have known this patient. In contrast, the health care power of attorney delegates this decision-making authority to the agent you have named. Presumably, you have chosen someone who genuinely cares for you, someone who knows you heart and knows what you would want in any given circumstance.

A diagnosis of dementia does not necessarily mean that your mother cannot execute advance directives. In fact, most people in the early stages of dementia retain the legal capacity to execute a general durable power of attorney, health care power of attorney and living will. "Legal capacity" means more than the simple ability to sign her name to the document. Legal capacity requires that your mother know "what she is about" and have some general understanding of the effect of the document. An attorney who works frequently with seniors with diminished capacity can determine whether your mother can execute advance directives. Your attorney may also rely on an evaluation of your mother's capacity by her physician as evidence of her capacity as well.

If properly drafted, the general durable power of attorney will permit the attorney-in-fact (the decision-maker named in the document) to engage in Medicaid planning on your mother's behalf. Given the expense of long-term care, Medicaid planning may be necessary in order to insure that your mother will receive the care she requires and that your father retains sufficient assets to provide for his own needs. Please note that even if your mother has previously executed a power of attorney, this document likely does not include the necessary grants of authority to permit Medicaid planning and should be reviewed by an attorney while your mother retains the capacity to execute a new power of attorney if necessary.

Early planning results in more successful efforts to protect assets and establish Medicaid eligibility. Early medical intervention often extends this planning period. Frequently, if the patient diagnosed with dementia sees a physician who focuses her practice on dementia diagnoses and treatment, the early stages of the disease can be extended, allowing the patient to remain at home for as long as possible. In addition, a specific diagnosis (such as Alzheimer's disease, Parkinson's disease or vascular dementia) will also give your family some idea of the progression the disease is expected to take and the time periods for such progression. Therefore, if your mother has received only a general diagnosis of dementia, she should request a referral to a specialist to receive a thorough evaluation and a specific diagnosis that may prolong her years of living independently or with family assistance.

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Wendy A. Craig

Wendy A. Craig, P.A.
Concentrating in Elder Law for Western North Carolina

207 East State Street, Black Mountain, NC 28711
828-669-0799 (Voice) • 828-669-0055 (Fax)

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