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Legal Steps to Take with a Recent Dementia Diagnosis

If your loved one just had a diagnosis of dementia, the family will want to make sure their loved one's legal and financial affairs are in order. Too often we see families procrastinate on going to see a good attorney to review the elder's estate and incapacity plan. Planning now can help protect assets, help provide Medicaid and VA benefits eligibility, make sure assets avoid probate and much, much more. Lack of planning can result in poor care, family issues, court-appointed guardianship and more. With this, please consider looking at the following:

  1. Review your Durable Power of Attorney: You will want to review your DPOA with a good elder law attorney, specifically considering the ability for attorney-in-fact to protect your assets in the event you need Medicaid. We see bad powers of attorney all the time prepared by less knowledgeable attorneys or powers of attorney executed through LegalZoom and other sources that are not legally sufficient. You also should make sure your attorney-in-fact is trustworthy and can help you in the event of your incapacity.
  2. Review your Designation of Health Care Surrogate: Besides making sure your named surrogate is the best person to help you, your designation of health care surrogate may need to be updated. Also, what if that named person could not serve as your surrogate?
  3. Review your Living Will: Not all living wills are created equal, so make sure yours is specific and includes your known wishes. Even more so, talk to your family about your end-of-life wishes, as living wills are not always perfect.
  4. Look to add a Dementia Rider to your Living Will: The addition of a Dementia Rider to your living will is a new way to make sure your family knows your wishes and you do not receive unwanted treatment as you go through the dementia process. While not widely available to the public, our law office uses them with our clients who have just been diagnosed with dementia.
  5. Review your Last Will and Testament/Living Trust: You want to make sure your assets go to the correct beneficiaries. Also, older living trusts may need to be updated.
  6. Locate your Original Estate Planning Documents: Even if your estate planning documents are up to date, make sure you know where the original documents are!
  7. Add a Co-Trustee to your Living Trust: If you have a living trust, you would likely want to add a trusted person as a co-trustee with you, so they could access your banking and financial accounts without the (sometimes) arduous process of having you removed as sole trustee of your trust. This may not be an easy process, especially with re-titling the assets with the financial institutions, so getting this done ahead of time is almost always recommended. You would want to work with your attorney to make any changes to your estate plannning documents.
  8. Review your assets and how they are titled: Many people do not do a good job funding their estate plan, which typically includes re-titling assets to your trust, confirming co-owners on accounts, correct beneficiaries of your IRAs, life insurance, and more.
  9. Consider protecting your assets before the five year lookback period: There are some good ways to protect your assets from the cost of long-term care with the use of irrevocable asset protection trust planning.  While not for everyone, they can be very helpful in providing for yourself and your family should you not be able to stay home.
  10. Consider giving your homestead property to an irrevocable asset protection trust: Even if you do not have a great deal of money to protect, you may want to take additional steps to protect your homestead property should you need nursing home care.
  11. Gather VA paperwork: If you are a veteran or the surviving spouse of a veteran, VA benefits may be very helpful. Please look for your Military Discharge paperwork (such as the DD-214) and also include information on all of your marriages and how they ended (i.e., death or divorce).
  12. Consider your long-term prospects: Would now be the time to re-locate to be with family members who are out of state? If your family/caregivers are out of state, that may be the best place to receive care over a long period of time.
  13. Get a Florida ID Card: Florida ID cards do not expire, which may be important should you ever need to prove your identity in the future.

The key in all of this is to sit down with a good elder law attorney to review your estate plan, finances and prospects, as well as talking with your family/caregivers about your wishes, before you are not able to make your decisions yourself. It should likely involve a family meeting, thorough review of assets and much more.

You may also want to attend one of our free seminars on estate planning and Medicaid planning.  Sign up on our website at this link.

 

D. Rep DeLoach III
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Estate Planning and Board Certified Elder Law Attorney
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