Legal Decisions - For The Caregiver: Alzheimers

Content provided by the Faculty of the Harvard Medical School

Legal decisions

There will come a time when the person with Alzheimer's can no longer manage his or her affairs. Do not assume that you'll have advance notice. Alzheimer's disease is unpredictable, and the person whose cognitive problems seem mild may unexpectedly make irrational decisions with disastrous consequences. If possible, legal documents should be executed while the person is still competent.

Legal competence

The issue of legal competence is complex. Essentially, all adults are presumed competent to make decisions. Incompetence, which can be determined only by a court, is usually based on a person's functional abilities, not simply on the basis of diagnosis. What's more, incompetence can be difficult to prove. Poor business sense and memory lapses, for example, are not sufficient evidence of incompetence.

A legal document called a durable power of attorney is usually the most straightforward way for a person to grant another person (generally the caregiver) the power to make decisions on his or her behalf regarding property, residence, and other financial affairs. A durable power of attorney also permits the person to delegate certain responsibilities that are proving difficult, such as managing money or paying bills.

The authority that is handed over can be very narrow or quite broad. For example, you might give someone the authority to sell your car or to make all financial decisions, including selling your home, managing your assets, and dealing with the Internal Revenue Service. The durable power of attorney can be written so that it starts as soon as it's signed, or it can go into effect at a future point in time, for example, if you become incapacitated.

A trust is another method of authorizing an individual or institution to manage someone's affairs. A trust is more far-reaching and complex than a durable power of attorney. Trusts allow you to officially gather assets, including a house, money, stocks, and so forth, and place them in a legal entity. While you're alive, you are the trust's beneficiary. You may control distributions yourself or through trustees elected to carry out your wishes at a time or point that you specify. When you die, the trustees distribute remaining assets to the other beneficiaries whom you chose. The wishes you relay through a trust can take effect today, if you like, or upon a triggering event, such as when you can no longer handle your own affairs because of mental or physical incapacity.

Executing a durable power of attorney or trust is far simpler than trying to establish a guardianship (also called conservatorship or committeeship), which requires court hearings and proof of incompetence. Some family lawyers are willing to handle the necessary legal documents. If yours is not, he or she may refer you to another lawyer. AARP or the Alzheimer's Association can also recommend an attorney in your area who's experienced in elder law.

Advance directives

An advance directive for health care should also be executed. Although a living will is the best-known document of this type, people with Alzheimer's disease and their families should be aware of its narrow application. Living wills apply to terminal illnesses, which may exempt Alzheimer's disease and many other conditions. The living will can be interpreted different ways, and some states may not permit the withdrawal of life-sustaining treatment, such as artificial feeding. In contrast, the durable power of attorney for health care can apply to all medical situations, not just terminal illness. A person designates a surrogate to make medical decisions on his or her behalf. Once an advance directive such as the living will or durable power of attorney for health care is completed, the person's physician should have a copy. It's a good idea to keep extra copies on hand in case the need for emergency treatment or hospitalization arises.

Making a will

People with Alzheimer's disease and their spouses or other designated surrogates need to have current wills that specify beneficiaries and how the disposal of their estates should be handled. If you are a spouse or primary caregiver, don't neglect discussing with other family members and your attorney who should be the beneficiary in the event of your death and how the person with Alzheimer's disease is to be cared for if that occurs.

Last updated:	January 23, 2007