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Planning for Legal Incapacity After an Alzheimer’s Diagnosis

Unlike most cancers or AIDS, which are mainly physical afflictions, the symptoms and effects of Alzheimer’s disease strike at the heart of who we are as a person and have profound effects on our abilities to enter into legally valid arrangements. Given the effects of Alzheimer’s, great emphasis should be placed on the dignity of a person suffering from the disease. With proper planning, adequate provisions can be put in place to care for someone afflicted with Alzheimer’s disease during life and to provide estate administration after passing in a dignified and respectful manner. As with many other aspects of Alzheimer’s, the critical factor is time. The effectiveness of legal documents depends on the legal capacity to sign estate planning documents.

In Illinois, the required capacity to execute estate planning documents is that one must possess sufficient mental capacity to know the objects of his bounty, comprehend the kind and character of his property, understand the effects of his act, and make disposition of his property according to some plan formed in his mind. Basically, a person must be able to identify his family and his assets, to know he is signing a legally effective document, and to identify a plan for disposition of his assets after death. Those afflicted with Alzheimer’s often go in and out of lucidity, so simply having the disease is not necessarily enough to disqualify someone from planning. However, the less frequent the lucidity, the more difficulty a court may have in finding that the requisite capacity was present. Whether one has capacity is a determination often not made until after someone with Alzheimer’s has passed away, and in many cases, a court’s determination of whether capacity exists depends on the surrounding circumstances at the time documents were executed. Accordingly, legal planning for an Alzheimer’s diagnosis should be dealt with as soon as possible.

Once someone lacks the capacity to care for their own affairs, a guardianship proceeding may be filed in the court system. Guardianship proceedings are public affairs and can take several weeks to complete. In a guardianship proceeding, a court determines whether a person is legally incompetent to manage their own affairs. If there is a finding of incompetence, the court will appoint a guardian, typically either a family member or close friend, to oversee the affairs of the ward, including financial management and, potentially, placement in a residential care facility. Guardians have duties to the ward to manage the ward’s affairs in the ward’s best interests, including accounting for their use of financial assets.

However, with prompt attention, relatively simple planning can be done to avoid the necessity of a guardianship proceeding. Depending on one’s level of assets, either a will or a will and trust can be executed to provide for distribution of assets following death. Emphasis should be given to robust and measured provisions in the documents because, while legal incapacity may be relatively near, physical death may not occur for many years, at which time family dynamics may have changed greatly since the original plan was put in place. For example, a trust document should not just plan for a distribution to a child, but should also address plans for distribution in the event of that child’s death.

Of particular importance in the estate planning documents for someone afflicted with Alzheimer’s disease are the Powers of Attorney. In Illinois, there are 2 types of powers of attorney, one for property and another for health care. Within each Power of Attorney document, a person names both a power of attorney – someone to act in their stead and in their shoes – and names successors to continue in an event of disability or the unavailability of the original designee. Powers of Attorney can be made effective immediately, which is of particular usefulness to those suffering from the symptoms of Alzheimer’s disease. If properly drafted, a set of powers of attorney can duplicate the powers of a guardianship, without the necessity of public court proceedings.

No one plans on suffering from Alzheimer’s disease. However, legal planning can help protect the wishes and dignity of those suffering in the latter stages of the disease, and deserves consideration in the immediate aftermath of an early diagnosis.