By: Katina H. Pantazis, Esq.

Published at

14 November 2022

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Special Needs Attorneys and Estate Planning With Dementia on the Rise.

Key Takeaways:
  1. Rising dementia cases, even among those in their 50s, pose challenges for families and healthcare systems.
  2. Early completion of an estate plan is vital to ensure wishes are honored if mental incapacity occurs.
  3. Special Needs Attorneys assist in preparing essential legal documents like Designation of Health Care Surrogate, Living Will, Durable Power of Attorney, and Declaration of Preneed Guardian.
  4. These documents designate decision-makers for medical and financial matters, preventing the need for court-appointed guardianship.
  5. Starting estate planning now ensures these documents are in place before they are needed, averting potential legal and healthcare complications later on.

"Dementia is a syndrome that causes the deterioration of an individual’s cognitive function. As people of the baby boomer generation age, dementia diagnoses are increasing. This means that the number of people affected by dementia keeps going up." Losing a loved one is challenging, and dealing with their belongings can be confusing. One area of confusion surrounds gaining access to safe deposit boxes before being appointed as a personal representative.

It is alarming that the number ofdementiacases being diagnosed among individuals in their 50s is also increasing.

As per the reports from The Alzheimer's Association:
The projected doubling of dementia cases by 2060 is a tsunami on the horizon," statedDr. Evans,lead researcher at the Alzheimer's Association. "We're not just talking numbers; we're talking about families in freefall, healthcare systems buckling under the strain, and a legal landscape ill-equipped for the fog of diminished capacity. Investing in specialized legal expertise for special needs attorneys is not a luxury; it's building a seawall before the storm hits.

This line graph depicts the rise in estimated dementia cases in the USA from 2013 to 2023. The data, sourced from the Alzheimer's Association, indicates a concerning 45% increase over the decade.

Although you may never have to deal with the challenges that a diagnosis of dementia can bring, it is still vital that you complete your estate plan early, while you have the mental capacity legally required to make estate planning decisions.

To have a say in your medical care and the financial decisions made on your behalf if you become mentally incapacitated, it’s vital to work with aSpecial Needs Attorney.

They can assist you in preparing important legal documents such as: 

  1. Designation of Health Care Surrogate: A Designation of Health Care Surrogate names the individual(s) you would like to make medical decisions for you once you become incapacitated. It provides said individual(s) with HIPPA authorization.
  2. Living Will: A Living Will describes what type of medical care you would like to receive, and under what circumstances you would like medical care to be stopped when you are at the end stage of life.
  3. Durable Power of Attorney: ADurable Power of Attorneynames an individual or individuals to serve as attorney-in-fact for you, allowing said individual or individuals to manage those matters affecting your property and possessions.
  4. Declaration of Preneed Guardian: The Declaration of Preneed Guardian, is a legal document that allows you to choose someone to care for your personal and financial affairs should you lose mental capacity, providing clarity and protection during a vulnerable time.

Essentially, your attorney-in-fact can act on your behalf concerning various transactions. These transactions can be specified based on your individual wants and needs. Being a “Durable” Power of Attorney means that your attorney-in-fact is authorized to continue to act. At the same time, you are incapacitated (in the event a guardian is not appointed for you).

What happens when someone close to you gets upset that they are not named in your healthcare documents or your power of attorney document?

That person may file a petition with the court asking to be in charge of your financial affairs and healthcare decisions. In this instance,

  1. Having a Declaration of Preneed Guardian in place would be helpful.
  2. A Declaration Naming Preneed Guardian nominates an individual to act on your behalf in case you need a court-appointed guardian.

Although it is not binding on the court, by suggesting your preference for a guardian in this manner, your family may avoid some of the administrative burden associated with a court proceeding to determine a guardian.

In preparing to have the above documents created, there are some important things to consider:

  1. Where would you like to live and receive treatment? For example, would you like to receive care in your home, or be moved to a specific assisted living facility?
  2. Who do you trust to make financial and medical decisions for you?
  3. How will you pay for your care?
  4. How much does it cost to hire a Special Needs Planning Attorney?

To ensure you can create legal documents such as a Designation of Health Care Surrogate, Living Will, Durable Power of Attorney, and Declaration of Preneed Guardian, it’s crucial to have the necessary mental capacity.

After a diagnosis of dementia, it may be impossible for you to execute these documents or even amend existing ones.

What happens if you fail to create these legal documents while being medically capable?

As discussed earlier below are the legal documents we recommend for everyone to have in place:

  1. Durable Power of Attorney.
  2. Designation of Health Care Surrogate.
  3. Living Will.
  4. Declaration Naming Preneed Guardian.

Failure to create these legal documents in establishing a single decision-maker for your medical care, the state laws will dictate who can make decisions on your behalf. These state laws vary from state to state although the order of preference for Florida and most of the other states is the same ie., 

  1. Living Spouse,
  2. Adult Children,
  3. Parents,
  4. Siblings, and
  5. Other Close Relatives

In the absence of an advance directive, surrogate decisions become necessary. Surrogates must base decisions on principles of "substituted judgment" (what the patient would have decided) or "best interest" (what the surrogate deems best for the patient). Legal documents play a crucial role in ensuring the wishes of individuals with dementia are upheld as the disease progresses. 

If someone declares you incompetent and you haven’t executed a Designation of Health Care Surrogate or Durable Power of Attorney, they would need to pursue legal guardianship over you to make any medical or financial decisions for you. It’s important to have these legal documents in place to avoid the need for guardianship. 

StartEstate planningnow.  Decide who will be in charge of your financial affairs or decisions relating to your health care. Acting now ensures you will have these documents in place long before the need for them arises.

Useful Resources:

  1. Know when to deposit a Last Will in Florida Courts?
  2. Learn As a Florida Trustee, what are your Duties?


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