Proactive Legal Strategies for Cognitive Decline

November 13, 2024

Cognitive decline is a concern many of us may face as we age. However, it’s something to face head-on. Planning for this possibility is not about expecting the worst but being prepared. Whether you or a loved one are already experiencing early signs of cognitive decline or want to be proactive, an elder law attorney can help protect your future. There are some proactive legal strategies for cognitive decline.

According to Assured Assisted Living, the best time to start planning for cognitive decline is before it happens. Working with an elder law attorney can create a legal framework that safeguards your wishes, even if you face cognitive impairment later in life. Above all, the two critical legal tools to leverage are powers of attorney and advance healthcare directives.

One of the most essential legal documents is a durable power of attorney. This document allows you to appoint someone you trust to handle your financial and legal affairs if you cannot do so. Choosing this person ahead of time can prevent court intervention and ensure that your finances remain secure.

In addition to financial matters, it’s important to consider your healthcare decisions in an emergency. By using an advance healthcare directive, you can outline your wishes if you ever become incapacitated. Just because you can’t speak for yourself doesn’t mean you have to lose agency in your care.

Managing day-to-day tasks, such as paying bills or understanding complex legal documents, can become problematic as cognitive decline progresses. For some, the decline may occur gradually, giving time to plan and adjust. For others, it may be more sudden. With a plan in place, your family could avoid the stress of navigating the court system to gain control over your finances or healthcare.

Proactively creating legal protections protects yourself from potential complications, allowing your loved ones to act quickly and efficiently when needed.

If you suspect that you or a loved one may be experiencing cognitive decline, it’s essential to seek medical advice early. As discussed in a recent reflection from an attorney facing cognitive impairment, many health conditions, such as vitamin deficiencies or sleep disorders, can mimic symptoms of cognitive decline. Addressing these issues early can slow or even reverse specific symptoms. If your cognitive decline is more advanced, early diagnosis allows for more effective legal planning.

Building a support team to help manage legal and healthcare issues is essential when planning for cognitive decline. An elder law attorney can assist in preparing the necessary documents to ensure that trusted individuals can step in to manage your affairs, if needed. Having a reliable primary care physician and specialists, such as neurologists or geriatricians, can also help identify health-related concerns early.

Establishing proactive legal strategies for cognitive decline is also about protecting your family. Your family could face emotional and financial strain without the proper legal documents. Legal battles over guardianship, medical decisions, or asset management can be stressful and time-consuming. By acting now, you can help avoid these challenges and ensure that your family is cared for in a way that reflects your wishes.

The future is unpredictable, but your legal plans don’t have to be. Whether you’re already noticing early signs of cognitive decline or want to be proactive, now is the time to meet with an elder law attorney. If you would like to learn more about managing incapacity, please visit our previous posts.

Reference: AssuredAssistedLiving (Sep. 20, 2024) “Legal and Financial Planning and Cognitive Impairment”

Photo by Kindel Media

Disability Insurance is a vital Component of Estate Planning

August 22, 2024

Disability insurance is a vital component of comprehensive estate planning. It ensures that you and your family can maintain financial stability in the event of a disabling condition. According to the American Medical Association (AMA), understanding the essential aspects of disability insurance is vital to choosing the best policy for your needs.

Disability insurance provides income replacement if you’re unable to work due to illness or injury. It is a safety net that ensures that you can continue to meet financial obligations, even when you are not earning a regular salary.

Imagine being the primary breadwinner for your family. One day, you suffer a severe injury that prevents you from working. Without disability insurance, the loss of income could lead to significant financial hardship. Disability insurance provides stability by covering these losses while you get back on your feet.

Selecting the right disability insurance policy requires understanding various factors and terms. For one, you need to understand the kind of liabilities you have to choose from to find the most suitable coverage. Combine this with Riders that match your needs to get customized, affordable disability coverage.

Own-Occupation: This type provides benefits if you cannot perform the duties of your specific occupation. It’s ideal for professionals, like doctors or lawyers, who have specialized skills.
Any Occupation: This type only provides benefits if you cannot work in any occupation suited to your experience and education. It’s less expensive but offers broader coverage.
Modified Own-Occupation: You receive benefits if you cannot perform your job and are not working in another job. This is a middle-ground option that balances cost and coverage.

What Riders are Available for Disability Insurance?

Residual Disability Rider: Provides partial benefits if you can work part-time but not full-time.
Cost of Living Adjustment (COLA) Rider: Adjusts benefits according to inflation, maintaining your purchasing power.
Future Increase Option Rider: You can increase coverage as your income grows without additional medical exams.

The cost of disability insurance varies based on several factors:

Age and Gender: Younger individuals and women typically pay higher premiums.
Occupation: High-risk jobs attract higher premiums.
Health: Pre-existing conditions can increase the cost.
Coverage Amount and Duration: Higher benefits and longer durations cost more.
Policy Riders: Additional features, like cost-of-living adjustments, can raise premiums.

Disability insurance is a vital component of comprehensive estate planning. Protecting your future requires careful planning. Once you’re injured, it’s too late to begin planning. That’s why you should contact an experienced attorney and start planning today. If you would like to learn more about disability insurance, please visit our previous posts.

Reference: American Medical Association (AMA) (May 21, 2024) “Evaluating a disability policy | American Medical Association”

Understanding how a Guardianship and Conservatorship Contrast

February 21, 2024

Guardianship and conservatorship are two legal mechanisms designed to assist individuals who cannot manage their own affairs. While they share similarities, understanding how a guardianship and conservatorship contrast is vital. Guardianship typically pertains to personal and health care decisions, while conservatorship deals with financial matters. Both require court appointment and carry significant responsibility.

Guardianship involves the legal authority granted to a guardian to make decisions on behalf of a person who is unable to do so. This typically pertains to personal, health and welfare decisions. A court appoints a guardian when an individual is deemed incapacitated, and the guardian may have to make a wide range of personal decisions for them. A guardian has significant responsibilities, including making personal care decisions, overseeing living arrangements and ensuring the overall well-being of their ward. They must keep detailed records and report to the court regularly, demonstrating that they are acting in the best interests of the ward.

In cases involving minor children, guardianship becomes essential when parents are unable to provide care. The guardian, appointed by the court, assumes responsibility for the child’s personal needs and welfare, acting in their best interests. This is often seen when parents are unable or unwilling to care for their child or in the event of the death of the parents.

Conservatorship, on the other hand, is primarily focused on financial matters. A conservator is appointed to manage the financial affairs of an individual who is unable to do so themselves, due to incapacity or other reasons. This includes managing a person’s assets, making investments and handling financial decisions. In conservatorship proceedings, the court appoints a conservator to oversee the financial needs of the incapacitated individual. The conservator must act responsibly and is often required to provide the court with periodic financial reports.

While a guardian manages personal and medical decisions, a conservator handles the financial aspects, such as personal and financial records, asset management and financial planning. This distinction is crucial in understanding the roles and responsibilities each holds.

The legal authority granted to a guardian differs from that of a conservator. A guardian makes personal and medical decisions, while a conservator focuses on financial and asset management. This division ensures that all aspects of an individual’s life are cared for adequately. Both guardians and conservators are appointed by the court and must act in the best interests of their wards. They are supervised by the court and must provide regular reports to demonstrate their compliance with legal responsibilities.

Incorporating guardianship and conservatorship into an estate plan is crucial. An estate plan can appoint a guardian or conservator in advance, providing clarity and direction in the event of incapacitation. Including a power of attorney in your estate plan can preempt the need for a court-appointed guardian or conservator. This allows you to choose who will make decisions on your behalf, if you become unable to do so.

An effective estate plan, including wills and power of attorney, can provide peace of mind and ensure that your wishes are honored. It prepares for scenarios where you might be incapacitated, ensuring that your personal and financial matters are in trusted hands. Navigating the complexities of guardianship and conservatorship can be challenging. A lawyer can help you understand how a guardianship and conservatorship contrast. The assistance of an estate planning or elder lawyer is invaluable in understanding your options, the legal process and ensuring that your loved one’s needs are met.

Each situation is unique, and a lawyer can provide tailored advice depending on your specific circumstances. They can help you navigate the legal system, ensuring the best outcome for you and your loved ones. If you would like to learn more about guardianship, please visit our previous posts.

Photo by Ivan Samkov

Selling the Family Home when a Loved One needs Nursing Care

November 28, 2023

When an aging relative decides the time is right to move into an assisted living or continuing care facility, families face many decisions. This is often a difficult but necessary step for older individuals with trouble living independently or planning for their future needs. Selling the family home when a loved one needs nursing care can be a challenge. A recent article from Herald—Standard, “How to handle selling a home when moving into an assisted living facility,” offers suggestions to help families navigate the process.

First, speak with an estate planning attorney to have a trusted, responsible family member be named Power of Attorney. Individuals moving into assisted living may not have any cognitive problems at the time of the move. However, selling a home for a family member who develops dementia can present complex challenges. Only a person with legal capacity may transfer their home to a new owner. Having a Power of Attorney allows a family member to step in and manage the transaction without needing to go to court and have a guardian named.

Talk about the situation and the sale with the aging family member. They will need time to process the idea of selling their home and moving. Homeowners make untold sacrifices and compromises to buy and maintain their homes, so the decision to sell a beloved home is almost always very difficult and brings out a range of emotions.

Throughout this process, an open and honest dialogue about what can be achieved by selling the home and improving their quality of life will be helpful.

Sorting through belongings is an extremely hard task. A lifetime of memories and a loss of their independence are all wrapped up in the contents of a home. It will be impossible to take the entire contents into a one or two-bedroom apartment. Take the time to sort through belongings with your family members and select certain items to give them a sense of home in a smaller space.

If possible, try to pass on some items to younger family members. Most importantly, handle this process with as much compassion as possible.

Keep all relevant people involved and current throughout the process. This is particularly important if the family members are scattered in different states. Adult children who live far away and can’t be active participants in this process shouldn’t be dismissed and left out. Open communication with other family members will minimize the chances of objections when the sale and move take place.

Finally, because this is perhaps the largest and last financial transaction, make sure the sale of their home is done with an eye to their estate plan. Selling the family home when a loved one needs nursing care may cause tax issues. There may be ways to minimize tax exposure for the individual and their estate plan. Confer with an estate planning attorney to avoid any missteps. If you would like to learn more about managing property in your estate plan, please visit our previous posts.

Reference: Herald-Standard (Oct. 27, 2023) “How to handle selling a home when moving into an assisted living facility”

Photo by Pavel Danilyuk

Durable Power of Attorney can Prevent Guardianship Issues

May 31, 2023

Guardianship or conservatorship documents are not easy to obtain and can take months to finalize, warns the article “Possible Guardianship Or Conservatorship in Your Future? Plan Ahead With A Durable Power of Attorney” from Idaho Senior Independent. However, there is a far easier way to plan for the future. A durable power of attorney can prevent guardianship issues.

Guardianship is a tool to solve the issue of a person who has become incapacitated and cannot make personal care, legal or financial decisions. With a durable power of attorney for health care decisions and a general durable power of attorney for financial matters, you can achieve the same level of control, with far less time, trouble and cost.

The ultimate goal is to gain the legal authority to make decisions for the incapacitated individual which will be honored by third parties, including financial institutions and health care providers and facilities.

Most estate planning attorneys advise married couples to give each other durable power of attorney (POA) for health care and finances. As long as the couple doesn’t die at the same time or become incapacitated at the same time, the well spouse can manage the couple’s health and assets. It may also be a good idea to give his legal authority to another person, usually one of their children.

Having an estate planning attorney create a comprehensive estate plan, which includes powers of attorney, health care powers of attorney, a last will and testament and other necessary legal documents, may seem like a lot to do. However, the alternative, pursuing guardianship or conservatorship, is just as lengthy, if not more so, and only solves one problem. A complete estate plan solves many, from care during incapacity to the distribution of assets after death.

Guardianship is needed if there is no durable health care POA for a loved one and they are unable to care for themselves or make medical decisions. This is especially true if they need some kind of housing assistance, such as assisted living or memory care. A conservatorship allows the named person to manage the loved one’s assets, including Social Security, investments and any property or vehicles they own. The POA also permits you to use their assets to pay for their care.

None of this can happen while going through the guardianship/conservatorship process, meaning you or someone else will have to pay the bills and time-sensitive decisions cannot be executed.

Achieving guardianship/conservatorship involves filing a petition with the court in the county where your loved one lives. In most cases, an estate planning attorney will advise the family member to obtain an appointment for their loved one with a physician who can evaluate the person’s ability to manage their life. A physician will need to provide a letter verifying the need for guardianship/conservatorship. The letter becomes part of the petition filed with the court.

The attorney will require a hearing based on the information provided.

Many courts require a different attorney to be retained to represent your loved one to avoid any conflict of interest. A different physician will, in many cases, also be required to evaluate the health of your relative. Courts also often require an assessment by a legal “visitor,” typically a licensed social worker who independently evaluates your relative and makes recommendations.

The visitor reports their findings to the court and to the attorneys. The guardianship/conservatorship applicant pays for the visit and subsequent reports, plus any attorney fees.

All of this takes time, although an attorney can request that the court grant temporary guardianship and conservatorship.

Having a legal, durable power of attorney for health and finances can prevent guardianship issues long before they will be needed. It is a far simpler way for you to care for loved ones, if and when they need it. If you would like to learn more about guardianship and elder law, please visit our previous posts.

Reference: Idaho Senior Independent (May 1, 2023) “Possible Guardianship Or Conservatorship in Your Future? Plan Ahead With A Durable Power of Attorney”

Brain Diseases

June 9, 2020

There are certain steps that can be taken by individuals, loved ones and family members to make this challenging time safer and smarter, advises an article “Financial And Estate Planning Steps To Take Now: Special Considerations For Those With Brain Disease” from Forbes. There are special estate planning steps for those with brain diseases.

Anyone living with a neurologic condition needs to be sure their planning reflects not only their condition but their personal experience of the condition. The variability of each person’s experience of a brain disease, from symptoms and severity to the progression rate and future prognosis to the possibility of any recovery, affects how they need to plan.

For an Alzheimer’s patient, in early stages there may be no problems in signing legal documents and putting legal safeguards in place to protect finances. Most people are not aware that the degree of competency to sign legal documents varies, depending upon the complexity of the documents to be signed and the circumstances. A relatively low level of competency is required to sign a will. This is known as “testamentary capacity.” A higher level of competency is required to sign something like a revocable trust, investment policy statement, etc. Therefore, a person who may be legally able to sign a will may not have the legal capacity to sign other documents. Alzheimer’s patients need to get their entire estate plan in order, as soon as a diagnosis is received. Safeguards are extremely important, including having an independent person, like a CPA or trusted family member, receive copies of all monthly bank and brokerage statements, in case abilities decline faster than anticipated.

Patients living with peripheral neuropathy may experience issues with balance, burning sensations, dizziness, hypersensitive skin and pain that make wearing socks or shoes impossible. If the condition becomes so severe that the person becomes homebound, they need to make changes: set up accounts, so bills can be paid online, have income streams set to automatic deposit and simplify and consolidate accounts. It is important to have a Power of Attorney (POA) that is effective immediately or a revocable living trust with a co-trustee. In this way, you do not have to leave home to conduct your business.

Parkinson’s disease may not be well understood by professional advisors. You’ll need to explain that your facial expression—Parkinsonian masked face—does not mean that you are not responding to a conversation. They need to know that your handwriting may change, becoming small and cramped. This can result in a bank or other financial institution refusing to accept your signature on documents. Your attorney can prepare a document that confirms you are living with Parkinson’s disease and that micrographia is one of your symptoms. The document should include three or four different signatures to reflect the variations. Have each signature witnessed and notarized.

People living with MS (multiple sclerosis) face the possibility of an exacerbation that could leave them incapacitated at any time. A revocable trust to coordinate financial management, with trusted individuals as co-trustees should be in place.

For people with these and other brain illnesses, an emergency financial and legal road map needs to be prepared. It should include monthly recurring bills, non-recurring bills like life insurance, property taxes, etc. Contact information for key advisors, your estate planning attorney, CPA, financial advisor, banker, insurance agent, etc., needs to be shared. Your estate plan should be updated, if you haven’t reviewed it in three or four years. There are special estate planning steps for those with brain diseases. If you don’t have an estate plan in place, now is the time to have one created.

If you would like to read more about Alzheimer’s, and other brain diseases, please visit our previous posts.

Reference: Forbes (May 17, 2020) “Financial And Estate Planning Steps To Take Now: Special Considerations For Those With Brain Disease”

Category: Parkinson’s

Proactive Legal Strategies for Cognitive Decline

Disability Insurance is a vital Component of Estate Planning

Understanding how a Guardianship and Conservatorship Contrast

Selling the Family Home when a Loved One needs Nursing Care

Durable Power of Attorney can Prevent Guardianship Issues

Brain Diseases

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