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  • Writer's pictureTim Doherty

Dementia - Knowledge and Planning

DISCLAIMER:


The following is general information and is not intended as legal advice and neither is it intended to create an attorney client relationship. For specific information you should consult a qualified attorney.


An Overview

Most people have life, health, or fire insurance and many have preplanned with a will or trust, because they want to protect themselves and their family. While the odds are that you will not be afflicted with dementia, being aware of the potential problems posed by such a condition and having a plan in place is the best insurance to protect yourself and your family in that event.

Dementia can affect anyone, but most often it affects older persons, afflicting an estimated 10-15% of those aged 65 and over. The types of dementia may vary, including Alzheimer's disease or other disorders of the brain, and may result in a variety of symptoms ranging from minor lapses in memory and cognitive ability, to complete debilitation. The effects of dementia often span a period of many years and cause various issues and problems, which may be legal or financial in nature.

The law assumes that everyone is mentally competent for the purpose of judging their actions, both criminally and civilly. A person with dementia can still be sued, or charged with a crime, causing them and their families to spend significant time, energy and money for lawyers to defend their actions..

People with dementia may also become entangled in financial problems, related to ill-advised purchases, donations, or situations arising from simple day-to-day financial affairs. Who will assist the person with dementia with their financial needs is a critical question that should be addressed long before the need arises.

Never was the adage, "an ounce of prevention is worth a pound of cure," more true than in the case of dementia. By increasing your knowledge regarding dementia and taking steps to proactively address and plan for the potential problems and issues, you can assure that you and your family will be prepared and protected.


What Is Dementia?


Dementia, meaning "deprived of mind," can affect people of all ages, but is most common in people 65 and older. It is usually a progressive disease, the affects of which vary from person to person, depending upon a variety of factors. Dementia may be related to physical injury, as well as a number of disease processes, the most familiar of which is Alzheimer's disease. Impairment may range from minor to complete and the progression may take years or be relatively fast.


Dementia is not simply forgetfulness, but rather it is a loss of the ability to comprehend and deal with daily routines and activities. As an example, it is a common fact of life to misplace your car keys, however not knowing what to do with them once you find them may be a sign of dementia. Personal safety is the greatest concern for people affected by dementia. Confusion traveling, forgetting to turn off the stove or an inability to identify the brake from the gas pedal are potential signs of dementia and can place the affected person and others in jeopardy.


However a dementia diagnosis does not mean that a person's life is over. Like any disease the person may loose certain functions and capabilities in varying degrees over a period of time. However, people with dementia often lead relatively normal lives with some varying form of assistance for years or decades.


Legal Considerations


It is important to know that in the eyes of the law everyone is presumed to be competent and accountable for their actions both civilly and criminally. In cases where a person with dementia is a party to a lawsuit or is charged with a crime the burden of proof will be on them to show that the underlying cause of their action was due to a cognitive disability. Even then they may not escape liability if they had been aware of their condition and did not take steps to mitigate it. Likewise, all adults are presumed capable of entering into contracts and are expected to perform according to the terms and conditions of those contracts, unless they can show that they were unable to understand those terms and conditions at the time of signing and the person with whom they contracted knew, or should have reasonably known, that they were incapable at the time of signing.


Knowledge is power. Knowing that a person has dementia allows them and their family to take appropriate action to mitigate the effects of the dementia. Proactively taking steps to limit activities that can lead to legal entanglements is far more desirable and helpful than any steps that may be taken after someone is placed in legal jeopardy.


A prime example is driving a car after a person knows they have a diagnosis of dementia. Under the law a person who knows that they have a disease or condition that impairs their ability to safely operate a vehicle, but continues to do so, may be held both criminally and civilly liable if their operation results in injury to persons or property. Lift, Uber and taxi services are far less costly than attorneys, court imposed fees or fines.


In one actual case a person with Alzheimers, who had always had a "thing" about bicyclist riding too far into the traffic lane, acted out their annoyance due to the effects of the disease and chased a bicyclist off the roadway and down a golf cart path onto a golf course. The driver was arrested and charged with multiple offenses, including assault with a deadly weapon, (the car). The criminal case was resolved only after protracted court proceedings and legal fees, with a court imposed agreement that the defendant essentially be committed to a memory care facility.


The most effective way to deal with legal problems is to avoid them altogether. Personal awareness and preparation by the individual affected by dementia, as well as that of their family and friends, can avoid situations that may result in civil or criminal actions. In the early stages of dementia people usually still have the ability to understand what is happening and help develop a plan and put legal safeguards in place while they still have legal capacity.


Financial Considerations


In addition to legal issues, persons with dementia should also be concerned with protecting their assets, like savings, property and pensions. Case books and news accounts are filled with stories of people affected by dementia who entered into financial transactions that resulted in significant harm to their savings or pensions. In some cases it was due to bad decisions by the affected person and in others it was the result of deliberate and fraudulent criminal acts by unscrupulous predators who prey on people with diminished capacity. Unfortunately, in many cases where such predators are involved, there is very little chance of recovery for the defrauded person, or recovery is limited.


In one instance, a retiree with Lewy Body disease gave away most of his IRA account to internet scammers, who preyed on his charitable instincts with fraudulent tales of needy children and families. Due to the transitory and shadowy nature of such scams law enforcement could do nothing to recover the hundreds of thousands of dollars he had "donated."


Protecting Assets


Putting measures in place to protect assets before an individual is harmed financially is the best policy. This can be done by placing assets into a trust and designating successor trustees or designating an attorney-in-fact through a durable power of attorney. If you have a trust your successor trustee generally has the ability to manage your assets either as the trustee or with a durable power of attorney that is part of your estate plan. However, even without an estate plan you can designate someone to manage your assets with a durable power of attorney.


There are potential pitfalls with having someone manage assets, however with good planning and people those pitfalls can be minimized. Whether you give immediate power to manage assets to someone, or require a doctor to declare you incapacitated, the real questions is do you trust the person(s) you place in charge of your assets. In some cases, where someone has no trusted family or friends to act on their behalf, a trust officer or professional fiduciary can be employed to take over your assets.


Whether or not you choose to convey power over your assets to another person should be a decision that is made after full consideration of all facts, consultation with a qualified estate planning attorney and discussions with trusted family and friends. The key factor, however, is timeliness. Placing safeguards on one's assets should be done long before the need arises.


Some Simple Safeguards


There are a number of ways you can help manage your personal life and assets that do not require any legal action. These include:

  • Get a new unlisted phone number.

  • Place your phone number on the national do not call registry.

  • Do not answer calls from unrecognized numbers. If it's important they will leave a message.

  • Do not buy from, or donate to, anyone who solicits you over the phone or internet. Do not be afraid to hangup on unsolicited callers no matter how nice they seem.

  • Do not allow strangers into your home unless a trusted family member or friend is present.

  • Discuss any significant purchase or donation with a trusted family member or friend before proceeding.

  • Limit yourself to one credit card and limit the maximum purchase to a reasonable amount.

  • Have your credit card company place an alert on any charge above a certain dollar amount and have an e-mail go to a trusted family member or friend.

  • Have a trusted person placed on your bank accounts, or place the accounts into your trust, so that your successor trustee can more easily assist with the account.

  • Take advantage of the Department of Motor Vehicles Mature Driver Improvement Program.

  • Purchase a vehicle that has newer technology that warns you of unintended lane changes, items behind you when backing, cars in your blindspot, etc.

  • Maintain regular contact with family and friends. Discuss concerns you may have regarding any loss of cognitive ability.

  • See your doctor regularly and be sure to mention any concerns you have regarding loss of memory or cognitive ability.

  • Remember, an early diagnosis of dementia means an early intervention that may help slow or mitigate the effects of dementia.

By taking these actions you may maintain maximum control over your personal affairs and assets for a greater period of time. While taking these steps do not require legal action, they should only be taken after careful consideration and consultation with trusted family members, friends, or your physician.


Resources


The following is a partial list of resources that may assist with dementia issues and problems, or provide referrals for your particular situation. Check for the local chapters in your area.


The Alzheimer's Association


The Lewy Body Dementia Association


Family Caregiver Alliance


American Parkinson's Disease Association


Remember, panic is the result of an absence of planning. When you identify a problem the best way to deal with it is to develop a plan of action. As Benjamin Franklin said, "If you fail to plan, you are planning to fail."


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