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Can You Sue Someone With Dementia

Property And Financial Affairs Lpa

Younger people with dementia: Sue’s story – Remember the person (subtitled)

A property and financial affairs LPA gives your attorney the power to make decisions about money and property for you, such as:

  • managing a bank or building society account
  • paying bills
  • collecting benefits or a pension
  • selling your home

Once the LPA is registered with the Office of the Public Guardian, it can be used with your permission, even if you’re still able to deal with these things yourself.

Or it can be held in readiness for when you’re no longer able to make decisions for yourself.

What Happens If You Dont Have A Lpa For Dementia

World Alzheimers Month highlights the wide-ranging problems facing people with dementia and their families and the lack of an LPA is among the most emotionally upsetting and legally challenging. If a relative or friend is diagnosed with dementia they may not be able to carry on making their own decisions.

Charlotte: Reflections From Practice And The Evidence On Tube Feeding

Lets start by acknowledging that eating is important. We all know this food not only sustains us, but provides pleasure, social and cultural opportunities, and can also be an act of love, whether you are preparing food for someone you care for or eating food that has been prepared for you. We automatically worry when people cannot eat, and untangling the emotions associated with a struggle to eat can be difficult all round. Food, and how someone eats it, or doesnt, is one of the most emotive things I discuss as a trainee doctor specialising in older adult care.

There are a variety of medical reasons why someone might be less able to eat normally, and there are several different options to consider in these cases. Such as artificial feeding, mainly via tubes that go through the skin of their belly into the stomach or down the nose , modified texture diets, or making the decision to support someone to eat precisely what they like.

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Do I Have To Have A Legal Or Clinical Determination Of Incapacity For A Specific Decision Before I Override The Decision Of An Older Person With Dementia

Yes, you should seek a clinical assessment of capacity if you are concerned about a dementia such as Alzheimers disease. This is especially important if you believe it has progressed to the point that a person has lost the capacity to make certain decisions.

If you feel you need to override the persons decisions, for instance to protect the persons physical safety or financial wellbeing, you may need a legal determination of incapacity.

If the person with dementia has completed a durable general power of attorney, the agent should be able to act on their behalf. To override decisions made by the person with dementia, the agent will often need to provide proof that the person has lost the capacity to make certain types of decisions. Many power of attorney documents specify the criteria for deeming the principal incapacitated, although some are pretty vague about this.

If the person who has dementia has not completed a durable general power of attorney, then you will probably need to consult with a lawyer, to determine whether the person still has the capacity to designate a power of attorney. If the person is lacking this capacity, then you may need to pursue guardianship in court, in order to override the persons decisions.

Even if you have secured a legal determination of incapacity for certain decisions, its vital to act in accordance with ethical best practices that respect the persons autonomy and dignity to the greatest extent possible.

Do I Want To Be A Guardian Or Conservator

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  • It depends. Being a guardian or conservator enables you to be absolutely sure your loved one is being well looked after. However, it is also a huge responsibility.
  • As a guardian or conservator, you are an officer of the court, and you must give regular reports to the judge. This can be quite time consuming.
  • Being a guardian or conservator is a long-term commitment. It lasts for the rest of the ward’s life, unless the court appoints someone else to take your place.
  • The job of guardian or conservator is very important. You do not want to take on this responsibility unless you are absolutely sure you can do the job.

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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.

How Do You Prove Nursing Home Neglect Occurred

To prove that neglect occurred, your attorney will need to show how nursing home staff members failed to properly care for your loved one and how this failure caused harm.

A nursing home abuse law firm can help you file a case that shows how an assisted living facility neglected you or a family member.

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Avoiding Fights Over Undue Influence

To avoid a court battle after your death over undue influence, take the same steps you would take to avoid other disputes: Make sure your estate plan isn’t a surprise to your family members, and if you’re leaving assets in a way that will confuse or disappoint relatives, explain it now.

If you’re worried about a vulnerable relative being taken advantage of, acting now to prevent abuse is vastly preferable to trying to fight it later with a lawsuit. If your family member clearly isn’t able to make rational decisions on his or her own, go to court to get a guardian or conservator appointed.

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    Capacity To Make And Execute A Will

    Five Ways You Can Help A Family With Dementia

    The mental ability to make and execute a will is called “testamentary capacity.” Wills often are challenged when it is suspected the “testator” — the person who signed the will — lacked testamentary capacity at the time .

    Statutes and case law may vary among different 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
    • Those who are the natural beneficiaries of their estate
    • The disposition he or she is making

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    Sarah And Sue: Reflections From Experience

    Sarah: Mum was a foodie an early adopter of Mediterranean cookery, a brilliant baker and a happy provider of delicious meals for family, friends and community events. But as Mums dementia advanced, her food preferences changed. Her long-standing enjoyment of savoury foods was replaced by a delight in sweet things. One time I arrived with some liquorice allsorts and Mum, forgetting the word for sweets, was so pleased with that bag of naughties! Her live-in carer was so great at making dainty, delicious meals that Mum could enjoy, adapted to her changing abilities and preferences. In time, Mum started to have some difficulty in swallowing, but it was fortunate that she was able to eat and drink until the last week of her life. News then that she was struggling to get a cup to her mouth was awful to hear such a pitiful image of one so dear to me.

    I was glad that, while Mum was still able, we had talked about what she would like, should she no longer be able to eat. Mum was clear no hospital and no tubes. This was part of a discussion of what interventions Mum would wish to have or avoid, and under what circumstances. We used the guidance from Compassion in Dying to help Mum make an Advance Decision, supported by her GP. It was such a relief to have this in place and to know that, as Mum stopped eating, the focus should be on ensuring her comfort , not finding another way to provide nourishment.

    Scenario : Its Too Late For The Person To Sign A Power Of Attorney

    Often, by the time a caregiver realizes that their older adult has diminished mental capacity, theyre no longer able to sign the necessary legal documents.

    Anderson says, If a person gets to the point where they dont know who their family members are, what assets they own, and who they would want to make decisions for them regarding their assets and health care matters, then they arent mentally competent to sign a legal document such as a health care power of attorney or financial power of attorney.

    In this case, Anderson advises, there is very little that can be done for the person except applying to the court for a formal conservatorship or guardianship.

    A conservatorship is when the court appoints a person to have control over a persons finances. A guardianship is when a person is appointed by a court to have control over the care, comfort, and maintenance of another person.

    Unfortunately, legal proceedings for these types of conservatorships and guardianships are usually time-consuming and expensive due to legal fees, agents fees, and court costs.

    Option: Use married status to keep access to co-owned assetsAnderson points out one solution that could prevent these problems.

    If the person is married and, as a couple, they made earlier decisions to hold their assets as co-owners, then the mentally competent spouse can still access the family checking accounts, savings accounts, or other assets without the necessity of going to court for a conservatorship.

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    What Is Considered Nursing Home Neglect

    occurs when residents are not provided with adequate care, leading to serious injury or wrongful death.

    The federal government requires nursing homes receiving Medicare or Medicaid to meet a basic standard of care. Adequate care standards are determined by .

    Despite variations, most jurisdictions recognize some commonly reported forms of nursing home neglect.

    Common types of nursing home neglect include:

    • Neglect of basic needs
    • Neglect stemming from medical malpractice
    • Social or emotional neglect

    Any form of nursing home neglect that harms a resident may be considered abuse. As a result, you may be able to sue a nursing home for negligence and retrieve compensation.

    What If My Brother Or Sister And I Both Want To Serve As Our Parent’s Guardian Or Conservator

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    • When two people in the same class both want to be the guardian or conservator, the court will choose based on its opinion of the ward’s best interests. It will consider the petitioners’ abilities and characters, along with the ward’s wishes, if these are known.
    • If the court feels that the guardianship or conservatorship issue will seriously harm the family’s relationships or the ward, it will skip both petitioners in favor of someone else, usually a more distant relative or a neutral attorney who has been specially trained to handle these matters.

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    What Is The Difference Between Incapacity And Incompetence

    Capacity is often considered from a clinical perspective versus a legal perspective .

    Historically, the term competence was used in legal settings and the term capacity was used in clinical settings. The legal determination of competence was often informed by a clinical assessment of capacity.

    Hence many clinicians will still say that they cannot assess someones competence they can only assess their capacity as regards a given decision or life function.

    However, states have recently been moving away from global legal determinations that a person is incompetent, which often meant the loss of virtually all control over ones affairs and are increasingly favoring determinations of incapacity for certain types of decisions or life functions.

    Hence the old convention of using competence for the legal arena and capacity for the clinical one no longer works well.

    Instead, it is more accurate to refer to legal capacity versus clinical capacity. These two concepts are distinct albeit related as explained further below.

    Supporting Loved Ones With Dementia Over The Holidays

    If you have a loved one with dementia, you may have noticed their ability to participate in celebrations or large gatherings has changed. While the holiday season is a wonderful time of year to spend with family and friends, some common holiday activities can be overwhelming for people with dementia.

    Every person with dementia is different, but some common symptoms include:

    memory loss difficulty with communication and problem-solving reduced ability to plan, organize, and complete multi-step tasks

    Modifications can make holiday preparations and gatherings easier and more enjoyable for people with dementia, and their families. To prioritize, and set manageable expectations, ask yourself: what do the holidays mean to our family? Thinking about the true purpose of the holidays may help you decide which aspects of the holidays are worth spending your time and energy on. You may want to consider shortening gatherings, having a potluck or catered meal, having lunch instead of dinner, having an earlier dinner, or hosting a few smaller celebrations rather than one big gathering.

    As you prepare for the holidays, also consider these tips.

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    Caregivers Can’t Sue Alzheimer’s Patients Court Rules

    SAN FRANCISCO – People with Alzheimer’s disease are not liable for injuries they may cause their paid in-home caregivers, California’s highest court ruled Monday in a case involving a home health aide who was hurt while trying to restrain a client.

    The California Supreme Court ruled 5-2 that people hired to work with Alzheimer’s patients should know the disease commonly causes physical aggression and agitation in its later stages. The court majority concluded it would therefore be inappropriate to allow caregivers who get hurt managing a combative client to sue their employers.

    “It is a settled principle that those hired to manage a hazardous condition may not sue their clients for injuries caused by the very risks they were retained to confront,” Justice Carole Corrigan wrote for the majority.

    The law in California and many other states already establishes that caregivers in institutional settings such as hospitals and nursing homes may not seek damages from Alzheimer’s patients who injure them. To have a different standard for caregivers working in private homes would give families a financial incentive to put relatives with Alzheimer’s into nursing homes, Corrigan said.

    “The number of Californians afflicted with this disease can only be expected to grow in coming years,” she wrote.

    People With Advanced Dementia Have No Place In Court

    What is Singing for the Brain? An Alzheimer’s Society service for people affected by dementia – 2015

    Ever since Ernest Saunders was misdiagnosed as having Alzheimers disease in 1991 and released early from a prison sentence, dementia among defendants has had a bad name.

    when told by prosecutors last April that Greville Janner was too ill to stand trial. That cynicism persisted after the medical evidence of his dementia was accepted by a judge last month. And people who should have known better seemed to think that even Janners death a few days later was not enough to bring criminal proceedings against him to an end.

    Now there are on people with dementia who cause traffic accidents after being told not to drive. This is more than a little illogical, since those who are too ill to drive will probably be too ill to stand trial at a hearing some months later. They will certainly be too ill to serve a substantial prison sentence.

    This enthusiasm for punishing those who are no longer in control of their actions is deeply unattractive. Of course, it can be difficult to distinguish between the mad and the bad. Mentally ill people sometimes need to be detained in secure hospitals, for both their safety and ours. But what justification can there be for imposing a punishment on those who cannot understand its purpose? Its hardly going to deter someone from repeating conduct that they simply cannot remember.

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    What Constitutes Undue Influence

    A relative who suspects undue influence must contest the will in probate court, after the will-maker’s death. Laws vary from state to state, but generally, to win a lawsuit charging that a will was written under undue influence, the person bringing the lawsuit must usually prove that:

    • The will left property in a way that was not what would be expectedin other words, close family members did not inherit.
    • There was a “confidential relationship” between the will-maker and the person who exerted influence.
    • The will-maker was susceptible to undue influence.
    • The influencer took advantage of the will-maker and benefited from the will through improper means.

    These factors all point to a situation where a vulnerable person is taken advantage of. It’s common that the will-maker is elderly and frail, and suffering from some mild dementia, but that’s not always the case.

    A person of any age can be susceptible to improper influence because of physical or mental illness.

    A “confidential relationship” means a relationship of trust between the will-maker and the other person. People who are in a position to control a vulnerable person’s living situation or finances are the ones who have the opportunity to exert undue influence over estate planning. For example, undue influence may be exerted by a lawyer, a caretaker, or a relative.


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