Planning for Incapacity: The Importance of Estate Planning in Advance of Dementia, Alzheimer’s and Other Terminal Illnesses

In our last post we discussed healthcare powers of attorney (HCPOA) and their importance in the event of a medical emergency. Becoming incapacitated, however, can also occur slowly over time. As our life expectancies increase and people live longer, the possibility for mental and physical decline increases as well. Most everyone has either directly or indirectly been affected in some way by dementia, Alzheimer’s disease, and other terminal illnesses.

No one wants to imagine a point in their life in which they will have to rely on others for help, but preparation is how to ensure that your rights and assets will be adequately protected in the event of your long-term incapacity.

A recent example of unexpected mental decline is displayed by the Oscar-winning performance of actress Julianne Moore in the film Still Alice, which is based on the New York Times best- selling novel by Lisa Genova.

In the film, Alice, a brilliant and successful college professor, is diagnosed with early-onset Alzheimer’s disease. The film follows Alice as her mind slowly falls prey to the disease, losing her memory along with the ability to control her own body. Alice fights off the effects for a period of time, attempting to keep her mind sharp with puzzles and memory games, but inevitably she gets to a point where she is unable to care for herself.

It’s at this point during the movie that one realizes the important role family members must play as caregivers. Alice’s husband and each of her children have different opinions regarding how Alice’s on-going care should be handled. To each family member, Alice presented a different part of herself and therefore, a different expectation as to how the remainder of her care should be managed.

The film itself does not explicitly mention the creation of Alice’s incapacity documents, but it is made clear that the decision to appoint a healthcare power of attorney and/or financial power of attorney is a very personal decision and a decision one must make while taking into consideration family dynamics.

In certain situations, it is important to note that if incapacity documents are not timely created, a family may be forced to seek a conservatorship action to obtain legal authority to make healthcare and/or financial decisions for an incapacitated person. A conservatorship, which must be pursued through the court system, is often a time-consuming and expensive process. Establishing a valid HCPOA, living will, and financial power of attorney can help prevent the need for seeking a conservatorship action.

While making decisions concerning future incapacity can be difficult, it is important to have a plan in place because it could truly have an impact on you and your family’s future well-being.

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