Legal Issues when someone has Dementia – The Spouse’s Advance Directives

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, 2015 installment discussed the importance of making the General Power of Attorney “durable.”  The June 25, 2015 installment discussed the importance of NOT making the General Power of Attorney “springing.”  The July 2, 2015 installment discussed revoking prior Powers of Attorney.  The July 9, 2015 installment discussed Do Not Resuscitate orders.  The July 16, 2015 installment discussed the Right of Disposition designation.  The July 23, 2015 installment discussed the Will (or Last Will and Testament.)  The July 31, 2015 installment discussed beneficiary designations on life insurance policies, IRAs, annuities, etc.  The August 6, 2015 installment discussed whether to pre-plan a funeral.  The August 14, 2015 installment discussed choosing a final resting place.  The August 28, 2015 installment discussed pre-planning the funeral ceremony.  The September 3, 2015 installment discussed when and how to pay for the pre-planned funeral.  The September 10, 2015 installment discussed medical insurance choices.  The September 17, 2015 installment discussed long term care insurance.  The September 24, 2015 installment discussed how an elder law attorney can help.  The October 1, 2015 installment introduced the concept of guardianship.  The October 8, 2015 installment discussed the application process for guardianship.  The October 22, 2015 installment discussed the family disputes that can arise during a Guardianship proceeding.  The November 12, 2015 installment discussed the Probate Court’s examination of the alleged incompetence of the proposed ward in a guardianship proceeding.  The November 19, 2015 installment discussed the Probate Court’s examination of “less restrictive alternatives” to guardianship.  The December 4, 2015 installment discussed the Probate Court’s examination of who should be the guardian.  The December 10, 2015 installment discussed the difficulties that a family member might face if appointed guardian.  The December 17, 2014 installment discussed the difficulties that a family might face if a professional guardian is appointed for a loved one.  The January 14, 2016 installment discussed the termination of a guardianship.  The January 21, 2016 installment discussed alternatives to guardianship.  Today’s installment will discuss the need to revisit the spouse’s Advance Directives and other planning issues.

Someone who has a disease that causes dementia often is married.  The dementia of the one spouse might leave the other spouse without someone to make decisions in an emergency or in the event of his or her own cognitive decline.

Most married couples, if they have prepared Powers of Attorney, have named each other the Agents in those Power of Attorney documents.  The spouse that now suffers from dementia is no longer the appropriate person to have as the Agent for the “well spouse.”  That “well spouse” should have new Power of Attorney documents prepared, if possible.

The “well spouse” may have successor Agents named in his or her Power of Attorney.  If so, that makes new Powers of Attorney less urgent but no less important.  If something were to happen to the “well spouse” that made it necessary for an Agent to start making decisions, there could be a delay in accepting the successor Agent while awaiting confirmation (from a doctor, perhaps) that the primary Agent (the spouse with dementia) cannot act as Agent.  That delay can’t be good for the second spouse.  So, when someone suffers from dementia, the spouse of that someone should redo his or her Powers of Attorney and name someone other than the “ill spouse” as Agent and the successor Agents.  With the new Powers of Attorney, the spouse who does not have dementia should also prepare a HIPAA release and a living will (if wanted.)

If the “well spouse” has new Advance Directives set up, he or she should also at least consider the other preparations that have been discussed in this series:
– Long Term Care plan,
– Do Not Resuscitate Order (if appropriate,)
– Right of Disposition designation (naming who is in charge of funeral implementation),
– Last Will and Testament,
– Updating beneficiary and “transfer on death” designations on assets and financial accounts,
– Pre-planning a funeral and final resting place,
– Medical Insurance,
– Consider Long Term Care insurance,
– Designate someone whom the “well spouse” would prefer to be guardian, if one should be necessary (sometimes included in a General Power of Attorney document,) and
– Talk with an Elder Law Attorney about what planning for the future.

These new Advance Directives and other preparations aren’t necessary the next day after learning that one’s spouse has dementia, but the sooner the better.  Certainly, a month should be long enough to have the new Advance Directives prepared.

(Ed. Note:  This is the end, for now, of the series on Legal Issues when someone has Dementia.)

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