Thursday, June 16, 2022
HomeMust ReadCan A Person With Dementia Change Their Trust

Can A Person With Dementia Change Their Trust

Power Of Attorney Delegation Mid

Living with dementia

If there is no power of attorney designation, and the older adult is further along in the diseases process, things can get a bit more complicated. If an older adult is unable to understand the power of attorney document and process, the family will need to enlist the help of the local court.

A judge can review the case and grant someone in the family the title of conservator. A conservatorship allows the designee named by the court to make decisions about the persons finances. A guardianship allows the designee named by the court to make decisions about the persons healthcare. This is cumbersome, certainly, but it is necessary in order to advocate for your loved one and their wishes.

Dementia makes life a bit more complicated for older adults and their family members. Learn more about challenges you may face now and in the future, along with realistic solutions that will help you navigate them with confidence, by downloading our free resource, The Caregivers Complete Guide to Alzheimers and Dementia Care.

Estate Planning For Alzheimers Or Dementia Is Vital

It is painful to think of a future where you may suffer from dementia, but if you dont plan for the possibility, you not only put your estate at risk, you may put your family and your care at risk. Once dementia reaches the point where the person is unable to understand their assets, the documents purposes, or remember family members, a person can no longer create or modify an Estate Plan. Once the Dementia has progressed that far, the only option your family has is to file for Guardianship. Petitioning the court for a Guardian becomes necessary if you have not executed a Power of Attorney giving an agent of your choice the authority to act for you financially, or a Health Care Power of Attorney giving an agent authority to make medical decisions.

If you have no estate plan, then at your death, your assets pass under the States Intestacy Rules. Also, without a Will, there are no protective trusts to shelter assets for your loved ones. The Intestacy Rules do not take your wishes into consideration. A Will allows you to craft a plan that reflects your real desires.

What Is The Golden Rule

The ‘golden rule’ allows a medical professional to witness or approve a Will that is made by an elderly person or someone with a serious illness such as Dementia or Alzheimers. They must only do this is if they are satisfied that the person making the Will has the capacity to do so. It is also important that they maintain a record of this for the future. Although this is no guarantee that the Will is valid it does provide strong evidence that the person making the Will was doing so with mental awareness. Emotions often run high when a Will is contested, but the Court will only take facts and evidence into account when making a decision.

This information was originally published on our website on 02/07/2013.

Read Also: Is Excessive Talking A Sign Of Dementia

Can A Person With Dementia Draft A Will

  • Can a Person With Dementia Draft a Will?

  • January 23, 2019

    Assisting a parent or senior loved one in planning for the future with dementia can be difficult, but it is necessary. Time is of the essence and the more time that passes after a dementia diagnosis means there is less time for that person to participate in the planning process.

    Learn more about how a person who has dementia can draft a will and make legal plans for the future before its too late.

    How Do I Get Power Of Attorney For A Parent With Dementia

    Understanding Dementia

      When your loved one receives a diagnosis of Alzheimers disease or another type of dementia, your entire family has much to process. In addition to weathering the emotions that naturally follow this diagnosis, families must convene with the diagnosed older adult in order to make plans for their current and future needs.

      This can feel overwhelming, especially as you are trying to come to terms with the diagnosis. However, it is crucial that your family uses the early stages of the disease to fully understand the diagnosed older adults wishes and input for moving forward.

      Just one thing to consider during your planning is the topic of advance directives, including power of attorney. It is much easier for everyone to be on the same page in regard to power of attorney long before it is necessary because obtaining power of attorney when the older adult in question is already well into the disease process is more time consuming and difficult.

      You May Like: Why Do Dementia Patients Count Numbers

      Step 3 Consider Drafting A Financial Power Of Attorney

      Similar to the power of attorney in the healthcare context, the durable power of attorney for finances allows you to designate an agent to handle your financial and legal affairs should you become unable to. For example, should you become incapacitated, you can have your spouse pay your bills, handle investments, pay taxes, manage your assets, and more.

      Understanding the language of a financial power of attorney is important before you take any action. You should always understand the effect of signing a financial POA. Always remember, the POA can be revoked by you or changed at any time. NJ Law requires the following for all financial POAs:

    • You, as the principal , must willingly and voluntarily sign the POA, without being coerced by anyone
    • The POA must be notarized by a notary public.
    • Most attorneys also recommend having two witnesses that are unrelated to you and the witnesses who sign the document. This is not required but is highly recommended.
    • New Jersey has instituted stricter laws concerning financial POAs in recent years. The agent, acting on behalf of the principal, may only use the principals assets in a way that benefits the principal. If you are the principal and wish your agent to be able to benefit from the assets in any way, you must grant them such power in your financial POA.

      How Is Mental Incompetency Determined

      Simply having an illness or disability does not necessarily render someone mentally incompetentnor does eccentric behavior or occasional forgetfulness. Competency is always assumed unless a court of law determines otherwise.

      The legal process for declaring an individual mentally incompetent is as follows:

    • A motion for a competency hearing is filed.
    • A psychiatric and/or psychological evaluation is performed.
    • A competency hearing is held, in which the court examines the results of this evaluation and makes a decision.
    • When should someones mental competency be assessed?

      Only a court of law can determine an individual is mentally incompetent. However, according to The Public Legal Education and Information Service of New Brunswick, consistent observation of any of the following signs may be indicative of the need to assess a persons competence:

      • A person is not caring for themselves and/or their affairs and failing to enlist appropriate help to do so when necessary.
      • A person is unwilling to accept help to the point that their safety is at risk, and they are incapable of remedying the situation on their own.
      • A person has been declared mentally incompetent and files an appeal against this finding.

      Remember, its always best to consult a lawyer before taking any legal action.

      Read Also: Is Vascular Dementia The Same As Alzheimer’s

      What Is A Decision

      In order for any patient to give informed consent to any treatment or procedure, these three components must be in place:

    • The patient is not being coerced or under duress.
    • The patient is given all information relevant to making a decision about a proposed treatment.
    • The patient possesses the capacity to make a reasonable choice about accepting or declining a treatment.
    • If a patient shows reasonable evidence of the ability to understand and weigh information and use it to make a decision, they are considered to have decision-making capacity.

      Can A Successor Trustee Remove A Co

      How to Talk to Someone With Dementia

      Most of the time, trust creators name one successor trustee, just to make things simpler and avoid unnecessary disputes. But sometimes, the original trustee will name multiple successor trustees who are meant to share authority over and responsibility for the administration of a trust. When this is the case, a successor trustee can only remove a co-trustee if they have harmed the trust or engaged in misconduct, negligence, or a breach of fiduciary duty. Trustee breaches are more common than you might think, however, so a successor with a good case may very well be able to have a co-trustee removed. If the co-trustee is also a beneficiary, they may be relieved of their trustee authority, but less likely they will be disinherited.

      You May Like: How To Care For Someone With Vascular Dementia

      Memory Loss And Distortion

      People with dementia tend to have problems with short-term memory. They may remember things from long ago but forget what happened this morning. Memory distortions also occur. People with dementia may confuse people in their memories, or combine two or more memories. Sometimes, they think an old memory is a new one. Memory issues are an early sign of dementia.

      Advance Directives For Financial And Estate Management

      Advance directives for financial and estate management must be created while the person with Alzheimer’s or a related dementia has legal capacity” to make decisions on their own, meaning they can still understand the decisions and what they might mean. These directives may include the following:

      A durable power of attorney for finances names someone to make financial decisions when the person with Alzheimer’s or a related dementia no longer can. It can help avoid court actions that may take away control of financial affairs.

      A will indicates how a person’s assets and estate will be distributed upon their death. It also can specify:

      • Arrangements for care of children, adult dependents, or pets
      • Gifts
      • Trusts to manage the estate
      • Funeral and/or burial arrangements

      Medical and legal experts say that the newly diagnosed person with Alzheimer’s or a related dementia and his or her family should create or update a will as soon as possible after diagnosis.

      A living trust addresses the management of money and property while a person is still living. The trust provides instructions about the person’s estate and appoints someone, called the trustee, to hold titles to property and money on the persons behalf. Using the instructions in the living trust, the trustee can pay bills or make other financial and property decisions when the person with dementia can no longer manage his or her affairs.

      A living trust can:

      You May Like: How To Prevent Alzheimer’s And Dementia

      You Can See Alzheimers Up Close

      In the case of Alzheimers disease , medical professionals can actually see changes to the brain tissue under a microscope, says the National Institute on Aging.

      The source says beta-amyloid proteins form between neurons, which is associated with the disease. It notes that one form of these proteins, in particular, called beta-amyloid 42, is thought to be especially toxic, and that abnormally high levels of the protein leads it to clump and form plaques that interfere with cellular function.

      Can A Person With Dementia Sign Other Documents

      3 simple ways to manage challenging behaviours associated ...

      A person with dementia may need to sign other documents like a deed, a power of attorney, a health care proxy, a contract for sale, etc. Legal practitioners generally agree that the standard of ability to sign such documents is slightly greater than for a will or trust. And the reason seems to be that often these documents will be dealing with specific property or a specific issue.

      As your estate planning attorney, we would obtain at least one physician’s report and would carefully and slowly discuss the transaction with the client.

      To sign any of the above documents, the person needs to be competent. If they are determined to be incompetent, any document they sign will have no legal effect. However, just because one exhibits early stages of dementia does not necessarily mean they are yet incompetent. For example, a person may forget the date and have trouble remembering their telephone number, but remember many other important facts. But clearly one presenting any traits of dementia is a warning to be very cautious.

      As your estate planning attorney, we would be obtaining at least one physician’s report, and perhaps two. We would carefully and slowly discuss the transaction with the client. We might videotape the signing as further evidence of competency.

      As a practical matter however, by the time most people become concerned that a person might be suffering from dementia, their competency to sign legal documents is likely compromised.

      Also Check: How To Help Slow Down Dementia

      Step 1 Start Your Alzheimers Planning Immediately

      First and foremost, it is important to begin your Alzheimers Planning immediately. As soon as the first sign of Alzheimers or memory loss is suspected, it is crucial that you have the proper documentation in place to ensure appropriate planning is followed. If you suspect a family member may be experiencing some early signs of Alzheimers, consult an Alzheimers Planning attorney immediately to evaluate their situation.

      Remember to bring important documents with you to your consultation. These documents should include any wills, trusts, powers of attorney, health care directives, and other important estate planning documents that may be useful for your Alzheimers planning. Documents pertaining to financial assets should also be shown to your attorney. An Alzheimers planning attorney will be able to evaluate the situation and provide guidance in determining what steps you should take. Taking appropriate action now can save you lots of time and money down the road, typically helping you avoid a court-mandated guardianship proceeding later.

      Can A Person With Dementia Sign A Will Or Trust

      The test for whether a person, including a person with dementia, has the ability to sign a document relating to the disposition of their estate is :

    • Does the client know reasonably well what the extent of their property ownership is? They do not need to be exactly precise on every asset, but aware enough that we can tell they are dealing in reality.
    • Do they know who are the natural objects of their bounty? This generally means family, and if one family member is excluded, do they generally know why?
    • Do they know this document gives their estate upon their death to the people they have named in their document?
    • Do they know these things at the time they sign these documents? They might not remember ten minutes later, but the question is whether they knew so at the time they signed.
    • Michigan courts have held that “weakness of mind and forgetfulness are insufficient to invalidate a will if it appears that the mind of the testator was capable of attention and exertion when aroused and was not imposed upon.”

      Also Check: Is Dementia The Same As Alzheimer’s

      Can A Successor Trustee Take Over If The Original Trustee Is Still Alive

      Not unless the original trustee has become mentally incapacitated or voluntarily relinquishes their position. Successor trustees do not have any power or authority over a living or revocable trust while the original trustee is still alive and well. But oftentimes, successor trustees are concerned about the original trustees continued ability to manage the trust due to aging, declining health, or neurological problems. This is why many trusts and/or durable powers of attorney contain provisions for deciding whether the maker is still capable of handling their own affairs. Oftentimes, the document will appoint a trusted and unbiased party to judge the original trustees mental fitness or lack thereof, and based on that assessment, a successor trustee may be authorized to take over management of the trust.

      Step 8 Learn From The Experience Of Others

      Small changes help make a dementia friendly community – Alzheimer’s Society

      As we enter our elder years, it isnt uncommon to see friends and other individuals we are familiar with develop certain diseases. While this is stressful to see a friend develop Dementia, Alzheimers, it is important to learn from this experience to help yourself and your family. Take the following case study for example:

      Case Study

      Bob, age 80, has developed Alzheimers. Both he and his wife Liz, age 79, are New Jersey residents and have worked together to fight against Bobs disease for many years.

      As is often the case with Alzheimers, Bob developed subtle memory loss at first, forgetting where he left his wallet, keys, etc. His physician said it was dementia and was progressing slowly, but unfortunately the disease accelerated and soon Bob would not just forget his keys but forget what they were to be used for as well.

      Liz, being exhausted caring for Bob at home, is finally convinced by her children to take him to adult day care. It turns out to relieve her burden significantly, but Liz worries that she will not be able to pay for this forever. She inquires as to what steps she should be taking to ensure financial security and quality care for Bob.

      Having started thinking about Alzheimers planning, she should first look at her Power of Attorney. Liz already has a financial and healthcare Power of Attorney as well as a Living Will, but nothing beyond this. What else should she do?

      You May Like: What Age Does Late Onset Alzheimer’s Start

      Do People With Dementia Lack Capacity

      Simply having dementia does not equal a lack of capacity. Symptoms span a wide spectrum, and those with mild-to-moderate cases often do retain some of their ability to evaluate and apply information and make choices in their own lives.

      From a legal standpoint, all people, regardless of diagnosis, appearance, or behavior, are assumed to have capacity unless proven otherwise.

      In most cases, capacity may only be assessed for the immediate situation at handas dementia patients may experience fluctuations in capacity levels, influenced by internal or external factors.

      Step 9 Seek Advice Of A Skilled Alzheimers Planning Attorney

      Families with a member that has Alzheimers, or another serious disease are often in a vulnerable position and need assistance. People have tons of questions regarding Medicaid eligibility, financial security, nursing home care, estate planning, and many other important topics.

      In most cases, Alzheimers, Estate and Medicaid planning is critical. Families need to be protected and assured that their assets and resources are not wasted when they could otherwise be receiving government benefits.

      So where should you turn for help? Someone who knows Medicaid laws? Financial planners? Accountants? Insurance salesmen? Who is in the best position to handle these diverse, complex issues as a whole and bring expertise in the overall situation as opposed to a single area? It is crucial to obtain advice from somebody that looks at the entire picture and makes sure all your rights are protected and your resources are put to good use. The Elder Care attorneys at Hanlon Niemann & Wright spend a significant amount of time in Alzheimers Planning are uniquely qualified to assist you in this area.

      Fredrick P. Niemann Esq.

      For more information about any of the topics discussed or if you have any questions regarding Alzheimers planning, please contact Fredrick P. Niemann, Esq., a qualified NJ Elder Care and Elder Law attorney. He can be reached toll-free at 376-5291 or by email at .

      Also Check: Why Do Alzheimer’s Patients Play With Their Feces


      Most Popular