Since announcing his dementia diagnosis, Bruce Willis and his family have been working to bring attention to those who are also dealing with this debilitating disease and how it impacts not only patients but their families. People with dementia are some of the bravest people we have ever known. Mr. Willis surely has played a bevy of brave characters during his career but this might be his toughest – and most courageous – role yet. We applaud Mr. Willis and his family’s efforts to encourage others similarly situated. While it’s important for everyone to plan for the future, legal plans are especially vital for a person diagnosed with dementia. The sooner these plans are put in place, the more likely it is that the person living with dementia will be able to participate in the process.
Making legal plans in advance is important for several reasons: Early planning allows the person with dementia to be involved and express their wishes for future care and decisions. This eliminates guesswork for families, and allows for the person with dementia to designate decision makers on their behalf. Early planning also allows time to work through the complex legal and financial issues that are involved in long-term care.
Legal planning should include:
Making arrangements for finances and property with a Will, Trust and Power of Attorney.
Naming another person to make decisions on behalf of the person with dementia with a Medical Power of Attorney or Advance Directive for Healthcare.
Preparing for long-term care needs and asset protection.
Power of Attorney
It’s best to put a plan in place for managing finances before the person with dementia loses sufficient legal capacity to execute a power of attorney. Legal capacity is the ability to understand and appreciate the consequences of one's actions and to make rational decisions. In most cases, if a person with dementia is able to understand the meaning and importance of a given legal document, they’re likely to have the legal capacity to execute (to carry out by signing) it. As long as the person has legal capacity, they should take part in legal planning.
Before a person with dementia signs any type of legal document:
Discuss the document. Make sure that the person understands the document, the consequences of signing it and what they are being asked to do.
Ask for medical advice. If you have concerns about the person’s ability to understand, a doctor will be able to help determine the level of their mental capacity. If the doctor agrees that capacity is there, then it’s best to have the legal document signed shortly after obtaining that doctor’s opinion.
Assess existing legal documents. Even if a living will, trust and power of attorney were completed in the past, it’s important to review these documents for any changes and update as necessary. Law sometimes change giving an agent broader authority to manage a person’s finances. Perhaps the trusted advisor now is different that the person named in existing documents.
When the person with dementia no longer has legal capacity, it may be advisable to pursue the appointment of a guardian for that person. Guardianship, sometimes referred to as conservatorship, is a legal process intended to obtain legal authority to make decisions for another person. The person seeking to have a guardian appointed is called the “petitioner”. The “guardian”, who can be different than the petitioner, is appointed by the court to make decisions for the object of the guardianship proceeding. The person who is the object of the proceeding is called the protected person. Because establishing guardianship may remove considerable rights from an individual, it should only be considered after alternatives to guardianship have proven ineffective or are unavailable.
Because guardianship deprives an individual of their legal rights and restricts their right to autonomy and self-determination, a guardianship order should be considered a last resort. A court must determine that there is no suitable less restrictive alternative before adjudicating a person incapacitated and appointing a guardian. Generally, guardianship should be as limited as reasonably possible to address the needs of the protected person. The court should allow the person to retain decision-making responsibility in areas where they are able to make and communicate decisions. Of course, it may become necessary to remove all of an individual’s rights and grant total responsibility to a guardian. A petitioner and court should explore and exhaust possible alternatives to guardianship before committing to the drastic act of depriving an individual of all rights.
Long-term care is expensive. As of 2022, the average cost of nursing homecare in Pennsylvania is over $12,000 per month. Health insurance and Medicare generally don’t cover long-term care. As a result, many become concerned over how they’ll pay for nursing care in the event they need it. Will they be forced to spend all their life savings and even sell their home to pay for care?
Medical assistance is available to pay for nursing care. More than seven in ten nursing home residents in Pennsylvania utilize Medicaid assistance to cover the cost of care. Unlike other forms of Medicaid assistance, recipients of Medicaid for long-term care in nursing homes must pay back the amount they receive. The State can even recover from the assets of the recipient’s estate after death. This is especially concerning for individuals hoping to leave their home to their loved ones.
Although owning a home (if it’s the applicant’s primary residence) generally won’t affect eligibility to receive Medicaid, the State can recover its costs by placing a lien on the home. A common strategy to avoid a lien is to transfer title to the home to the applicant’s children before applying for assistance. While this strategy may sound simple, it comes with significant risks. The timing and means of the transfer require careful planning.
Over the years, our experienced Elder Law & Guardianship attorneys have successfully helped our clients navigate the world of eldercare and the planning required to be comfortable with late-life living situations. Planning for this stage of life is the most commonly overlooked and procrastinated aspect of estate planning, or life-planning in general, that we see. People often think they have all the time in the world to plan for these situations, but they sneak up on you quicker than you'd think. Contact us for a free, no obligation consultation about you or your loved one.