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Legal Matters

Ideally, the legal documents described here will be in place before a diagnosis of Alzheimer's disease (AD). If not, the patient and a caregiver or companion should consult a lawyer as soon as possible because these instruments cannot be completed if a person is declared legally incompetent. Those in the early stages of AD are not automatically assumed to be incompetent, and are probably able to understand the issues and make decisions. However, if a court determines that the person is incompetent, family and friends may be able to manage affairs, but more than likely the court will need to appoint a surrogate to legally act on behalf of the individual with AD.

For legal advice, a family lawyer may be retained, but there are also attorneys who specialize in elder law. Lawyers can help interpret state laws and ensure that the wishes of the patient are carried out. Elder law attorneys are experts in legal matters of the aging such as long term care, Medicare, Medicaid, taxes and estate planning. Local Agencies on Aging may be able to provide referrals for legal advice, and low cost legal services are available through state legal aid societies.

If not already completed, legal medical directives should include establishing a Durable Power of Attorney for Health Care and completing a living will. Legal financial documents - a Durable Power of Attorney for Finances, a will and possibly a living trust -- also need to be finalized if they are not already in place. These documents should also be revisited periodically to ensure they are up to date. Since state laws vary, if the person moves, the documents may need to be re-examined. Family members or caregivers should know where the originals are located and have copies; the patient's physician should have copies of health-related legal documents.

On this page, you will find the following:

Advance Medical Directives

A Durable Power of Attorney for Health Care document must be drawn up before the patient becomes incapacitated. A Durable Power of Attorney for Health Care allows the patient to appoint a trusted person to make medical and health decisions when the individual can no longer do so. Some documents go into effect immediately, while others “spring” into action when a specified event occurs. It is important to choose the “agent” carefully and to fully discuss detailed wishes. The selected individual must agree to take responsibility, may need to make final decisions on minor and major medical issues, including life support, and has the right to withdraw from the agreement. Appointing an alternate is advised in case the chosen person is not willing or able to carry out the duties.

Living wills allow those with AD, while they are still able, to decide upon and express their wishes regarding end of life care. Later, they may no longer be capable of communicating these desires. With a living will, the individual can carefully consider what measures should be taken to prolong life. A living will may contain a “Do Not Resuscitate” order and other treatment limitations that instruct health care personnel not to perform aggressive medical interventions in situations where they could be used. If a physician or facility cannot honor a living will, they must inform the patient or the patient's representative, and assist in transferring the patient to a facility that will honor it.

Finance-related Documents

In establishing Durable Power of Attorney for Finances, the individual authorizes a family member, friend or professional to act as an agent or proxy on his or her behalf in making financial decisions including banking, investments, and tax and retirement matters.

If the AD patient becomes legally incompetent before a durable power of attorney can be named or if there is disagreement regarding the proxy, a conservatorship may have to be established through the court to handle financial matters. Although it has the advantage of legal supervision, a conservatorship can be expensive and time consuming to establish, requiring an investigation into competence, a hearing and a judgment. It is normally easier and quicker to establish a durable power of attorney for finances as soon as possible. A conservator does not make health decisions.

A will details how an individual's assets and estate will be divided upon death. Since the person must be of sound mind, a will should ideally be in place before a diagnosis of AD. A newly diagnosed patient, family member or professional should ensure that a will has been completed and is up to date. In the absence of a will, each state determines distribution of assets, which typically go to spouses, children or other family members. Some people choose to establish a living trust to distribute assets after death. A living trust is established while the individual is alive. The “grantor” (e.g., the person with AD) designates someone to serve as the trustee. The trustee manages assets of the trust and ensures proper distribution of them after the grantor's death.

Further Information

There are many organizations that can offer resources and assistance.
A full list of resources for legal aid can be found here.

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    Last Review: 04/21/15

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