Legal Issues when someone has Dementia – Consider a Will

This week’s blog continues the discussion of Legal Issues when someone has Dementia.  The introductory installment (April 30, 2015) put forth the issue of “Who can speak for someone with dementia?”  The May 14, 2015 installment discussed the situation where the person with dementia has Advance Directives in place.  The May 21, 2015 installment discussed the legal issues in determining whether a dementia sufferer can choose to have new Advance Directives prepared.  The May 30, 2015 installment discussed options in preparing a Health Care Power of Attorney.  The June 4, 2015 installment discussed how to decide whether to prepare a Living Will.  The June 11, 2015 installment discussed some of the basic issues in preparing a General Power of Attorney.  The June 18 installment discussed the importance of making the General Power of Attorney “durable.”  The June 25 installment discussed the importance of NOT making the General Power of Attorney “springing.”  The July 2 installment discussed revoking prior Powers of Attorney.  The July 9 installment discussed Do Not Resuscitate orders.  The July 16 installment discussed the Right of Disposition designation.  Today’s installment will discuss the Will (or Last Will and Testament.)

Please remember, the last several week’s installments have discussed the decisions and preparations that someone can make when he or she has dementia but the dementia isn’t advanced.  The dementia hasn’t yet taken away the person’s decision-making capacity.  Today’s discussion of a Will continues in that same vein.

A Will may not seem as though it’s important to the care that a dementia sufferer might require in the future or to the handling of that dementia sufferer’s medical and legal affairs as the disease progresses.  That impression is correct.  The Will isn’t important for a dementia victim’s medical or legal affairs related to the disease.  The Will might, though, be important to the person’s peace mind.

Someone with dementia is likely to have few or no financial assets when he or she dies.  The medical and custodial services of long term care that dementia requires could use up the person’s savings and income before his or her death (especially if the person did not get help from an elder law attorney.)  Alternatively, the person’s assets might be protected from the costs of long term care (usually through the help of an elder law attorney,) but the sheltered assets rarely belong to the dementia sufferer after they’ve been sheltered.  So, either way, someone with dementia should not expect to have financially significant assets at the time of death.  So, one might ask, what good is a Will to someone with dementia.

First, some people facing what will be their final illness want to avoid worrying if their “affairs are in order.”  No matter how little someone with dementia might expect to have when they die, they still might want to make provisions for what there will be at that time.  It can help anyone (suffering from dementia or not) feel as though he or she has done all in his or her power to look out for loved ones whom they will leave behind.  Often, there is a cathartic value in such preparations.

Second, the value of a will isn’t just financial.  It is true that most people think of a Will as divvying up the bank accounts, land holdings, corporate ownership, automobiles, and valuable antiques that belonged to someone who has passed away.  For many (perhaps even most) families, though, the Will is how items of sentimental value find their new homes.  Almost no heir cries when receiving a stock portfolio.  Many heirs cry, however, when they receive Great-Grandma’s wedding band, the antique desk that belonged to a beloved uncle, or some other piece of the family heritage.  These sentimental or historical family heirlooms don’t mean much to the bankers and credit card companies that served our parents and grandparents, but they often mean a great deal to us, our children, and our grandchildren.  One cannot place a dollar value on a shared family heritage or a sentimental memory.

To make it easier for someone to designate heirs on sentimental items, in some states, a formal Will isn’t necessary.  Some states allow a simple list of items and heirs that does not need witnessed or notarized or whatever other method might be required to authenticate a formal Will.   Preparation of this informal list can have the same cathartic effect as a Will.

To be sure, it is better to have a Will than not to have one.  Plenty of people (with or without dementia) failed to prepare Wills thinking that their assets would not justify the trouble.  Often, these people overlooked some of their assets or assumed a wildly low value for some of their assets.  Other people have inherited assets late in life, after dementia has taken away their decision-making ability, and it was too late to create a Will.  To avoid these problems, a simple Will is a good idea (even if a list of heirs for the sentimental items is prepared separately.)

A simple will should designate an executor or executrix.  (Executor is male, like steward.  Executrix is female, like stewardess.)  It should also name one or more successors, in case the designated executor or executrix can’t serve or can’t complete the job.

A Will should also the ability to dispose of (sell, give away, etc.) any assets that aren’t already designated in the Will or in the list of personal/sentimental items.  Disposition of real estate should specifically be listed in the powers of the executor or executrix.  Including these powers can, in some states, help the executor/executrix avoid seeking probate court permission to dispose of these assets. (The necessity to seek court permission adds costs and delays to the probate process.)

A Will should also include a “residual beneficiary” clause.  A residual beneficiary is the heir (or heirs) designating who gets anything from the estate that isn’t specifically listed somewhere.  The beneficiary, though, isn’t really the important part of this clause (expect, perhaps, to the beneficiary or beneficiaries.)  The important part of the clause is the “residual” part.  The “residual” part, because it catches any asset that wasn’t specifically listed elsewhere, keeps the previously-overlooked asset (like a forgotten bank account) or the late-in-life acquisition (like an inheritance received after the dementia had advanced) from being lost in limbo, without an instruction what to do with it.

In summary, even though a dementia sufferer may not expect to have significant financial assets, a Will can be valuable.  It can provide peace of mind and the cathartic feeling of having things settled.  It can also provide for sentimental or historical items.  Finally, it can make preparations for surprises that might happen after the dementia has advanced.

Even a dementia sufferer should consider a Will if he or she still can.


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