December 11, 2016
Thinking about the end…
Thinking about one’s death and the legal issues created by aging, illness, chronic conditions or disability can be terrifying. Perhaps that is why many people put off end of life planning until they are older. But, if Alzheimer’s disease or some other cognitive disorder arises, it could be too late to plan at that point.
Unfortunately, in the case of one of our recent clients it was too late to plan. Our client, let’s call her Sarah, is an eighty-one-year-old woman that has been diagnosed with Alzheimer’s and her family contacted The Elder Care Firm to address her estate planning and Michigan elder law issues.
Alzheimer’s Disease
Alzheimer’s disease is a serious medical condition that affects a person’s cognitive functions. There are often personality changes, loss of bodily functions and memory issues which causes difficulty with daily activities. It often occurs with the elderly, but also happens to younger people, called early onset. It’s one of the most common illnesses in the senior population.
There are three stages of Alzheimer’s disease. In the early stage, the patient still functions independently, but they begin to lose their cognition. The mid-stage is when they are semi-dependent on the caregiver and have memory and self-identity problems with personality changes. The late stage is severe and they are fully dependent on the caregiver. The disease is highly progressive and the movement from one stage to the next may happen rapidly.
Sarah’s Case
When Sarah first came into to see us, it was probably safe to say she was in Stage 2 of her Alzheimer’s disease. She was having some cognition issues and was semi-dependent on a caregiver, but she was still well aware of her surroundings and had the minimum capacity to make legal decisions.
The reason Sarah reached out to the Elder Care Firm was that her daughters, who were “helping” Sarah pay bills, started to fail at this task. Namely, bills were not being paid, money was missing, there was unexplained credit card debt, and an investigation had been opened by Adult Protective Services. The daughters were previously added as co-owners on Sarah’s bank accounts. The reason Sarah did this was to allow her daughters access the bank accounts to pay bills. The Certified Elder Law Attorneys at the Elder Care Firm strongly discourage our clients from adding joint owners on to bank accounts.
A well drafted power of attorney for finances is the better option. The power of attorney will allow the child to help pay bills while protecting the disabled parent from theft and/or the dangers that come with adding a child as a joint owner (divorce, lawsuit, etc.). The power of attorney also protects the child from allegations of impropriety.
Sarah’s initial concern was to remove her daughters from her bank accounts and to make a power of attorney for finances. She was self-aware that she needed help with her financial decisions; however, she did not want her daughters to serve in that role.
Sarah also wanted to make a Castle Trust: https://sunnybubbleslaundromat.com/blog/5-reasons-why-your-family-may-want-a-castle-trust, to protect her assets from Medicaid (if she were to end up in a nursing home), and to pass her hard-earned assets to her grandchildren and great grandchildren bypassing her daughters. Regrettably, in the short amount of time from our Design Meeting (the meeting where we sit down and design the estate plan), to our Review/Signing Meeting (approximately 1 month after the Design Meeting), Sarah’s cognitive abilities rapidly declined. After her daughters were removed from the bank accounts and were being investigated by the authorities from Adult Protective Services, the daughters lawyered up and started putting immense pressure on Sarah. It is my opinion that this pressure and stress of the situation exacerbated Sarah’s Alzheimer’s.
When Sarah showed up for our Review/Signing Meeting, she had a hard time remembering why she was there, who we were, and what type of documents we were reviewing. It was heartbreaking. Alzheimer’s is a horrible disease. Needless to say, we were not able to effectuate an estate plan that would have protected Sarah’s hard earned assets, and would have passed her assets along to her grandchildren after death. Preplanning would have avoided this situation.
Alzheimer’s Does Not Automatically Mean No Capacity to Sign
Sarah’s Alzheimer’s declined rapidly and severely causing her to not have the proper capacity to sign legal documents. Nevertheless, an Alzheimer’s diagnosis does not automatically mean that a person lacks legal capacity. A recent Michigan Court of Appeals decision ruled “the degree of mental impairment necessary to invalidate a will is well beyond merely being forgetful or having some mental infirmity.” So, if a loved one has been recently diagnosed with Alzheimer’s, there may still be time to get their affairs in order before their cognitive abilities worsen. The National Institute on Aging suggests that estate planning take place soon after the diagnosis of Alzheimer’s disease.
If you want to find out more information about this topic, feel free to attned an upcoming LifeCare Planning workshop.
