Is Neuropsychological Testing Required To Assess Capacity
Not necessarily. Clinicians are usually allowed to use clinical judgment in conducting their evaluations and reaching their conclusions.
Especially if a person has a dementia that is at a moderate or severe stage, it is often possible for a generalist physician to provide evidence of a lack of capacity, simply by interviewing the person, documenting responses that demonstrate a lack of needed understanding or reasoning, documenting evidence from family members and other observers, and providing evidence that the medical cause of the thinking problems is not likely to improve.
However, if a persons cognitive impairments are mild, subtle, or focused in certain cognitive domains, then neuropsychological testing is often very useful. Neuropsychological testing can also be used if a preliminary clinical evaluation by a physician yields borderline or uncertain results.
Coping With Alzheimer’s And Dementia From A Legal And Planning Perspective
Increased standards of living and medical advances in our country over recent decades have resulted in greatly increased life expectancies. Unfortunately, with these additional years comes the increased risk that a substantial number of us will suffer from some form of dementia-related illness or memory loss.
It is now estimated that 5.8 million Americans are currently living with Alzheimers disease and related dementia. If no effective cures are found, that number is expected to triple over the next thirty years. It is no surprise that individuals suffering from these conditions are worried about how they can maintain their own dignity through the progression of these diseases and how they can lessen its impact on their friends and families.
Realizing that there will be coming difficulties resulting from memory loss and lack of capacity, we owe it to ourselves and our families to plan while we are in good health and have the capacity to express our intentions and desires. It is important to start simple planning either before the onset of disease, or in the early stages of disease progression, in order to avoid more complex and costly alternatives, such as the court-directed conservatorships and/or guardianships discussed below.
Early Planning and Decision-Making Capacity
Differences between Guardianships and Conservatorships
May Someone With Dementia Sign A Will
Millions of people are affected by dementia, and unfortunately many of them do not have all their estate planning affairs in order before the symptoms start. If you or a loved one has dementia, it may not be too late to sign a will or other documents, but certain criteria must be met to ensure that the signer is mentally competent.
In order for a will to be valid, the person signing must have “testamentary capacity,” which means he or she must understand the implications of what is being signed. Simply because you have a form of mental illness or disease does not mean that you automatically lack the required mental capacity. As long as you have periods of lucidity, you may still be competent to sign a will.
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Generally, you are considered mentally competent to sign a will if the following criteria are met:
- You understand the nature and extent of your property, which means you know what you own and how much of it.
- You remember and understand who your relatives and descendants are and are able to articulate who should inherit your property.
- You understand what a will is and how it disposes of property.
- You understand how all these things relate to each other and come together to form a plan.
For more information about preventing a will contest, .
For more information about how to contest a will, .
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Dementia And The Living Will
A living will states a patients wishes for healthcare choices in the event that he or she cannot make their own decisions. It is possible that a dementia patient will reach the stage where they cannot understand the nature of their condition and the acceptability of treatment being offered. Therefore, it is very important that a document be written which states the conditions and treatment they find to be unacceptable. The only question is, does the dementia patient have the capacity to create and sign such a document at the time it is prepared?
Because a living will requires a person to understand medical conditions and treatment, as well as the consequences of their choices, a higher level of capacity is required than for a will or power of attorney. Some have argued that the higher standard required for signing a business contract should be applied. Others argue that the level of capacity should be the same as required for the informed consent of medical procedures.
In either case, the level of capacity for signing a living will is fairly high, more so than required for a will or power of attorney.
Health And Welfare Lpa
A health and welfare LPA gives your attorney the power to make decisions on your behalf about your health and welfare, such as:
- your daily routine
- medical care
- moving into a care home
- life-sustaining treatment
Once the LPA is registered with the Office of the Public Guardian, it can only be used when you’re no longer able to make your own decisions.
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Dementia And Signing Legal Documents
Dementia creates serious problems, no doubt. Among them is the compelling issue of who will make decisions for a person suffering from dementia, and who has the right to appoint such a decision-maker? What are the spouses rights? How about the children, individually? More importantly, what are the rights of the person suffering from dementia?
Dementia Does Not Mean Automatic Incapacity
Prevent challenges to legal documents arising from dementia
A diagnosis of dementia does not mean that the patient automatically lacks the ability to make decisions. Dementia is a progressive disease. It gets worse with time. A person with dementia may start out perfectly fine, with minor issues. Over time, they may lose the ability to make financial decisions, but be capable in other areas. Legally, such a person retains the right to make their own decisions until a court determines otherwise. However, a diagnosis of dementia should voluntarily energize the patient and the family to institute the legal arrangements which will be needed in the future. This will include the preparation of a Last Will and Testament, Power of Attorney and Living Will as needed.
Dementia and the Ability to Sign Legal Documents
Dementia and the Last Will and Testament
Dementia and the Durable Power of Attorney
Dementia and the Living Will
Determining Whether A Person Has The Capacity To Give Informed Consent
The components of informed consent:
- The possession of competence: competence refers to the legal capacity to make decisions in a certain realm and may be legally defined or determined in court. This is usually but not always linked to cognitive capacity. For example, many people under the age of 18 may have the cognitive capacity to make medical decisions but are not considered legally competent to do so .
- Voluntariness: not having been forced to make a particular decision.
- The provision of information: clear and truthful information, covering among other things details of any potential risks, benefits and alternatives to participants.
- Enrollment: freely deciding to participate in the study on the understanding that the participant can withdraw at any time without having to justify his/her decision or suffering any negative repercussions.
The criteria for competence:
Part of the process of obtaining informed consent involves determining whether a person has the necessary competence. A persons cognitive status or score on an assessment of mental status cannot be taken as sufficient proof of their ability to give informed consent .
The assessment of competence involves paying attention to four main abilities:
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Dementia And Power Of Attorney: What To Do If Someone Cant Or Wont Sign A Poa
The number of Americans with different forms of dementia, such as Alzheimers disease, continues to grow at an alarming rate, according to the Alzheimers Association.
If youre caring for someone with dementia, you may face a legal catch-22 you hadnt anticipated: they cant or wont sign a power of attorney. Thats the legal document that allows someone else to make critical medical and financial decisions on their behalf when theyre not able to.
Dementia and power of attorney issues can cause unwanted complications in a persons care. Their inability or refusal to sign essential legal documents may leave family with limited options that may not be in the persons best interests.
Ron Anderson, an ARAG® network attorney, says There are common scenarios that we see in our practice regarding the impact of dementia on making important decisions and estate planning.
Find out about three common scenarios involving someone with dementia and their power of attorney, some of the options available in these situations, and what steps to take to avoid costly problems.
What Is Lasting Power Of Attorney
For a person with a diagnosis of dementia, there may come a time when they are unable to make decisions about their care and their finances. This happens when someone is found to no longer have the capacity to make these decisions. We will discuss capacity in more detail throughout this leaflet .
A lasting power of attorney is a legal document appointing one, or more, trusted people to be a persons attorney. An attorney is a person responsible for making decisions on their behalf.
There are two types of LPA. It is possible to draw up one, or both. The same attorney can be appointed for both, or someone different can be appointed for each. They are:
Health and welfare, which appoints an attorney to make decisions regarding medical care, future care needs such as moving into a care home, and life-sustaining treatment. It can only be used once the person can no longer make their own decisions.
Property and financial affairs, which appoints an attorney to make decisions regarding managing a bank or building society account, paying bills, collecting benefits or a pension, or buying and selling a house. This can be used immediately if the person making it gives their permission.
An LPA is only valid in England and Wales. People in Northern Ireland can contact the Office of Care and Protection for advice on 0300 200 7812 .
People in Scotland can contact the Office of the Public Guardian on 01324 678398″ rel=”nofollow”> www.publicguardian-scotland.gov.uk).
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Can A Person With Cognitive Impairment Sign Legal Documents
When someone begins to exhibit signs of Alzheimers or dementia or perhaps even has a diagnosis of some type of cognitive impairment, they often turn to us wondering if its too late to prepare estate plans and get advanced directives in place.
To better understand what can and cannot be done, consider the following scenario:
In New York, a person does not need to have fully functioning mental capacity at all times, but must exhibit the various mental capacities discussed below when executing a will or the various advance directives. The standard level of mental capacity needed varies depending upon the advance directive that the person is executing.
The lowest level of capacity is testamentary capacity, which Mary will need to execute a will. To establish testamentary capacity, Mary must understand the nature of the act she is performing know the nature and extent of her property know the identity of those who are the natural objects of her bounty and understand the wills disposition of her property. Notably, there is no requirement that Mary be healthy. In fact, Mary does not even need to be competent at all times. She needs only a lucid interval of capacity to execute a will, which can even occur contemporaneously with an ongoing diagnosis of dementia, depression, incompetency, or even physical weakness.
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Dementia Does Not Mean Automatic Incapacity
Prevent challenges to legal documents arising from dementia
A diagnosis of dementia does not mean that the patient automatically lacks the ability to make decisions. Dementia is a progressive disease. It gets worse with time. A person with dementia may start out perfectly fine, with minor issues. Over time, they may lose the ability to make financial decisions, but be capable in other areas. Legally, such a person retains the right to make their own decisions until a court determines otherwise. However, a diagnosis of dementia should voluntarily energize the patient and the family to institute the legal arrangements which will be needed in the future. This will include the preparation of a last will and testament, power of attorney and living will as needed.
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Dementia And The Last Will And Testament
Certainly, incapacity is one of the arguments used by those attacking the probate of a last will and testament. However, in many states, there are three requirements of the person making the will: that they know the objects of their bounty they know the extent and nature of their holdings and they are able to form a reasonable plan for the disposition of their assets. Many times there is a rebuttable presumption at law that a person has the capacity to sign a will. A prudent person or attorney will be sure to obtain a letter or affidavit from a doctor stating that the testator has capacity to sign a last will. This document should be dated close to the time of the execution of the will. If it is the doctors opinion that the patient does not have capacity to sign a will, then there is nothing which should be done. Either a prior will or the state intestacy statute will control when the dementia patient dies.
Get Help With Estate Planning Matters
Of course, the best advice is not to wait until it may be too late to engage in proper legal planning. If possible, make a point of having these conversations with family members while they are still of sound mind and able to comprehend exactly what they are signing and why. These discussions can be difficult, but an experienced elder law attorney can help with this process. If a loved one has procrastinated on their legal preparations, an attorney can also determine if they meet legal competency requirements and even help with guardianship proceedings.
Can Someone Who Has Dementia Sign Legal Documents
In order to sign legal documents in New York, the individual must have legal capacity. Being able to sign ones name is not sufficient to have legal capacity. The person must understand the document that he or she is signing. As you will see below, different documents have different criteria for the determination of capacity. A person can have dementia and still be able to sign legal documents. It is important that someone with a diagnosis of early-stage dementia act quickly to put an estate plan in place before he or she loses capacity to sign documents. Failure to do so could lead to unnecessary expense and trauma for the family. For instance, if a proper power of attorney is not in place, a guardianship might be necessary. A guardianship is a legal proceeding that will require petitioning the court to appoint a guardian. A court evaluator will have to be appointed, a hearing will have to be held and a judge will make a determination. Subsequent to a guardianship proceeding, there will be reports and other requirements that will prove expensive and burdensome to the family. Also, the judge will select the person who is in charge of the individuals person and/or property. That person may not be the same person that the individual would have chosen had he or she been able to make the choice.
Last Wills and Testaments
Powers of Attorney
Health Care Proxies
Mental Capacity And The Mental Capacity Act
Mental capacity means being able to understand, remember and use information so you can make decisions about your life.
You may find you’re perfectly able to make decisions over what to buy from the supermarket or what to wear, but have trouble with understanding more complex financial issues.
Another person can’t decide you lack mental capacity because they think you have made a bad or strange decision.
Only a healthcare or another qualified professional can decide if mental capacity is lacking.
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Do I Need A Legal Or Clinical Determination Of Incapacity Before I Take The Car Keys Away From An Older Parent Who Has Dementia And Is An Unsafe Driver
If you are concerned about dementia and driving, you should make every effort to obtain a clinical assessment of capacity to drive safely. A legal determination of incapacity to drive will also help ensure you are on sound legal and ethical footing.
Its also essential to learn more about your states options and requirements when it comes to reporting potentially unsafe drivers. For instance, some states require clinicians to report moderate or severe dementia to the DMV.
However, many families find that the older person in question is refusing to see a doctor or attorney. In this case, you can still call the doctor and report your concerns. Privacy laws such as HIPAA do not require families to get permission to reveal details to the doctor they only require health professionals to have permission or other good reasons to disclose a patients information to others. If the doctor has a good relationship with the older person, they may be able to persuade them to come in for a visit.
Or, you can try calling Adult Protective Services they dont take a persons car keys away but they can sometimes encourage or even insist on further evaluation. You can also try to enlist others in the older persons social circle, to see if its possible to persuade the person to give up the keys.
Of note, the Alzheimers Associations position statement on driving and dementia states: