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Many people do not begin thinking about estate planning until they are older. You may not think about it until you are nearing retirement or even after you have retired. However, there are many good reasons to engage in estate planning sooner rather than later. A dementia diagnosis is one such reason. Once you are diagnosed with this memory condition, your ability to create, change, or revoke your estate plan will become more and more restricted as your condition progresses. Estate planning matters more than ever after a diagnosis of this kind because your plan can include details of the care you would like to receive as a result of the condition.
Dementia is a condition that makes the person unable to think clearly, remember things, or make decisions while they are performing everyday activities. The United States Centers for Disease Control and Prevention (CDC) states that dementia is not a specific disease, but is an overall term to describe a decline in an individual’s mental ability that interferes with their daily life. Alzheimer’s is the most common form of dementia and the one that most people are most familiar with. In fact, many people use the two interchangeably. However, there are multiple types of dementia, and each has a different cause. Some have genetic components, which means that if an individual has close family members who have been diagnosed with it, they have a higher risk of being diagnosed themselves.
The symptoms can vary, depending on the type of dementia that the individual has. Common symptoms include memory loss, confusion, difficulty organizing or planning, sleeping issues, or getting lost in familiar locations. Some forms, such as Lewy body, can affect the body as well as the mind. The causes of each form also vary, and it is important that individuals are aware that while dementia typically affects older adults, it is not a normal part of aging.
There are many conditions that an individual can be diagnosed with that do not affect estate planning, such as cancer, diabetes, or high cholesterol. A dementia diagnosis uniquely affects estate planning because the condition affects the brain and specifically, the memory. Ohio §147.141 prohibits a notary from notarizing an individual’s signature on legal documents if the person appears to be mentally incapable of understanding what they are signing or if the individual has been adjudicated mentally incompetent. Ohio §2107.02 addresses estate planning and states that individuals must be “of sound mind and memory” to write a will.
These two laws, and others, mean that once an individual has been officially diagnosed with dementia, the clock is ticking on their ability to make a will, give someone power of attorney, create a living will, and handle other documents that are part of their estate plan. Depending on the stage of their dementia at the time of diagnosis, they may have very little time or even no time to create, modify, or revoke their estate plan because they are no longer of sound mind and memory. Additionally, even before a diagnosis is made, if the symptoms have been present and others have noticed significant impairment as a result, this may allow others to contest a will or other parts of an estate plan that is created or updated after symptoms appeared. Finally, the memory issues associated with dementia could lead to an incomplete estate plan due to forgotten assets or other forgotten details.
Estate planning is important for everyone, but it can be imperative for those with dementia. While it is difficult to predict exactly what will happen to a specific individual, dementia has been shown to worsen over time and for many, the condition results in incapacitation. Once an individual is considered incapacitated, they are no longer able to create, modify, or revoke their estate plan. Therefore, creating an estate plan before they reach that point is imperative to ensure their estate is handled as they wish and that they receive the care they want.
If an individual with dementia becomes incapacitated without an estate plan, their estate will go through probate upon their death if there is no will. Without a will, their estate is subject to Ohio’s intestacy laws in Ohio §2105.06. This means the individual will have no say over who receives their assets or how those assets are used. If you would like to create or modify an existing estate plan, an experienced Ohio estate planning attorney at Rhodium Law, LLC may be able to assist you.
Additionally, without an estate plan, the individual may not have any powers of attorney (POA) for health care or finances. This means that someone may need to go to court and be granted guardianship over the incapacitated individual in order to handle these matters for them. The individual who is granted guardianship may not be who the incapacitated individual would want or they may take advantage of the individual with dementia. Finally, the lack of a living will means that the individual will have no say in what kind of care and treatments they receive. This can mean that the individual is subjected to care and treatments they would not have wanted or that they may not get care or treatment they would have wanted.
When an individual with dementia has an estate plan in place when they become incapacitated, their will and any trusts, if applicable, detail how to distribute their assets after death. While the will must be probated, any assets in a trust will bypass probate and be handled as the trust grantor indicated in the terms of the trust. This ensures that the individual’s assets are handled the way they would have wanted.
Powers of attorney, living wills, and other advance healthcare directives are also part of a comprehensive estate plan. These documents allow the individual to name someone who can make decisions on their behalf and detail the care and treatments they would want once they are incapacitated. This means the individual has considerable say in their care and treatment, even when they are incapacitated and unable to make those decisions anymore.
A dementia diagnosis does not necessarily mean that the individual is barred from estate planning from that moment on. However, once the condition progresses, if the individual becomes legally incapacitated, they cannot modify or revoke any legal documents, including anything in their estate plan.
Depending on the stage of the dementia when the individual is diagnosed, they can still create, modify, or revoke their estate plan. In fact, their diagnosis may prompt them to make changes to indicate their care choices as they relate to the dementia diagnosis. Determining whether the individual can create, modify, or revoke their estate plan after a dementia diagnosis will likely require consulting with both their healthcare provider and an estate planning attorney.
Being diagnosed with dementia can cause feelings of despair, unfairness, depression, and frustration. While it is not a diagnosis that anyone wants, once it has been received, it is important that you take quick action. Before the condition can progress to the point of incapacity, you may need to make many decisions, including how and to whom you want your assets distributed, who you would like to make health care or financial decisions on your behalf, and what decisions you want to include in a living will or other health care directive.
Whether you have already made these decisions, or would like legal guidance to help you make them, an experienced Ohio estate planning attorney at Rhodium Law, LLC may be able to assist you. Call our Cleveland office at (216) 699-8145 to schedule a free consultation and learn more about creating or modifying your estate plan.
