When a loved one develops Alzheimer’s Disease, dementia, or other illnesses that will ultimately affect mental capacity, families and caregivers face a variety of challenges, including coping with legal and financial issues. Because people with these illnesses will eventually lose the ability to think clearly and participate in decision making, advanced planning for health care and financial arrangements is critical. When possible, advance planning should take place as soon as possible after a diagnosis of Alzheimer’s or other degenerative illness, while the person is still able to participate in discussions. In order to undertake this advanced planning, the person with Alzheimer’s or dementia must have legal capacity, or the ability to understand and appreciate the consequences of one’s actions and to make rational decisions. When families begin the legal planning process, they should discuss two main types of documents: (1) documents that address the health care needs and future medical decision-making of someone who may no longer be able to make health care decisions; and (2) documents that communicate the financial management and estate plan wishes of someone who may no longer be able to make such financial decisions.

1. Planning for Future Medical Decision Making. Assuming the person has sufficient mental capacity to do so, an individual with Alzheimer’s, dementia, or a similar degenerative condition should execute an advance directive for medical decision-making at the earliest opportunity. You may have heard of a Living Will – a document that sets out specific details concerning an individual’s medical wishes in the event of mental incapacity. Living Wills can be problematic, however. For example, if a living will’s terms are ambiguous, a medical provider may not be able to discern the patient's wishes and require judicial intervention. To prevent this ambiguity, it is best to execute a Power of Attorney for Healthcare (POAH). The POAH names another person such as a spouse, adult child, or significant other as a person’s agent or proxy to make medical decisions when that person is unable to do so. Careful consideration must be given to whether the agent can be "trusted" to give the medical instruction which the principal would want. Such instructions may include the giving, or withholding, of artificial nutrition and hydration and/or the use of a ventilator. It is important that the grantor (the person granting power of attorney to the agent) and the agent(s) named in the power of attorney have communications in advance about the grantor’s wishes. The grantor should also ensure in advance that the agent(s) are aware of and will agree to this designation.

2. Financial Management and Estate Planning. This type of planning involves developing an efficient and effective system for administering the property of the Alzheimer’s or dementia patient, both during the person’s life and after death. By establishing such a plan, the individual can make determinations for the future while still mentally capable of doing so. In the absence of such a plan, there will likely be the need for a judicial determination of who will manage his/her affairs. The main legal devices for this type of property management are the Power of Attorney for Property (POAP), and estate planning documents such as Wills and Revocable Trusts. Under Illinois law, the POAP – like the POAH described above – becomes effective upon the grantor’s incapacity, and names an agent to make decisions concerning the grantor’s property and finances when s/he is unable to do so.

It is imperative to seize the opportunity at the earliest possible time to plan for the future financial and medical care of an individual with Alzheimer's, dementia, or other similar illness. We understand that each situation is unique. Please contact our office to set up a meeting for a free initial consultation to discuss any questions you may have about your situation and the steps you should be taking.