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Demented Parent? Get Estates Straight ASAP

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3387380879_f9620fde81This is a must read if you haven’t taken care of parent’s estate yet. Story comes from the UK, but none-the-less, an important read and something to think about.  Also, check out my interview with attorney Charles J. Dyer, Esq. Although Mr. Dyer lives and practices in Arizona, the information is incredibly useful and may help answer some questions or concerns you have about this subject.

Dementia rise puts stress on wills

An expert in probate law from Northampton has warned that increasing cases of dementia could see an increase in family infighting over loved ones’ wills.

Experts believe the number of dementia sufferers will increase sharply in coming decades, mainly because of an ageing population, with one in three over-65s dying with the condition.
Law practioners are now concerned this could mean more wills will be contested by family members who may argue that the sufferer did not know what they were doing when making changes.

Tom King of Northampton-based law firmTollers, which specialises in trust and probate claims, said: “Contested wills can quickly rip a family apart. And this is going to affect more and more Northampton families in the years to come. Where there’s dispute within a family about the contents of a will, evidence must be produced before it can be contested.

“Sadly, evidence of a person having dementia when a will change is made can raise many issues.”

There are 7,000 people with dementia in Northamptonshire, over half of who have Alzheimer’s disease caused by diseases of the brain.

This figure is set to increase by almost 50 per cent by 2021.

The Alzheimer’s Society has stressed the importance of people with dementia seeking an early diagnosis and planning for the future.

Gillian Shadbolt, manager of the Northamptonshire branch, said “It’s very important that anyone who has dementia takes the time to plan for the future as early as possible.

“People do not necessarily need to seek legal advice to write a will. However, important checks must be carried out and documented to establish that a person with dementia ‘has capacity’ at the time it is made. It is important that people with dementia also have a lasting power of attorney. This will allow them to document wishes about their future care and appoint people to make health and financial decisions when they are no longer able to.”

Interview: Charles J. Dyer, Esq.

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One of the most important things to do after receiving a diagnosis is to get your family’s legal house in order. Below, Charles J. Dyer of Dyer & Ferris, LLC in Phoenix, AZ talks to My Demented Mom about what should be done so you and your parent are legally protected:

MDM thanks Mr. Dyer and Dyer & Ferris for this interview.

Charles J. Dyer, Esq., for the Law Firm of Dyer & Ferris, LLC in Phoenix, Arizona

After receiving a diagnosis of dementia or, more specifically, Alzheimer’s disease, what should the family do from a legal standpoint?

The first thing that should be done after a diagnosis of dementia or Alzheimer’s has been given is to see if powers of attorney were done prior to the diagnosis being given. An individual will want to make sure that both durable financial and medical powers of attorney have been done. If the powers of attorney are in fact in place, then the family members of the affected can function under the powers of attorney.

If no powers of attorney have been executed and the subject has no lucid times when he or she would be considered competent to sign a power of attorney then and in those events consideration must be given to filing guardianship/conservatorship proceedings with the court.

If the financial power of attorney is in place, but one needs authority to give medical consent, then they can go to their state statutes and look for the statute within their particular state or jurisdiction which refers to “Surrogate Decision Makers” and complete an affidavit giving notice that the affiant is assuming duties as a medical decision maker.

Why is it so important to consult an elder care lawyer upon receiving a diagnosis of Alzheimer’s disease or other forms of dementia?

Lawyers who emphasize and are knowledgeable in elder care and the applicable statutes related thereto can give quicker responses to questions because they will not have to do special research to become knowledgeable with elder law matters.

Who should make legal decisions on behalf of the ailing parent? Can more than one person make those decisions?

“Who” is usually determined according to the order of priority set forth in the statutes of each state, and alternatively if there is any person interested who has the time and the knowledge of what must be done to give the incapacitated person a good standard of care and service then that person may receive priority.

What if you can’t afford a lawyer’s services, what can one do?

Check with the court in your jurisdiction that handles this type of case and inquire if they have any forms to assist the individual in representing themselves. If the specific court does not have any forms, then see if any forms are published by the county or state bar association. Finally, one can do research in the county law library to seek answers to their questions; they may request the service of a volunteer attorney program, the state agency on aging or a similar government agency.

If you had to make a list of things to do, again from a legal stand point, what would be your top 3 and why?

1. Verify the loved one’s diagnosis and possibly get a second opinion regarding the diagnosis.

2. Make arrangements to receive a medical report from the medical provider.

3. Make a search for powers of attorney with regard to the loved one affected (ask a spouse, adult children, close relatives and friends if they are aware of the existence of such a document.)

A person will want to do these things immediately because they are the least expensive, most expedient methods of providing care for the incapacitated. The last resort would be filing an action in a court of competent jurisdiction. This is the last resort because of the expense involved in such a proceeding.

** Please note that ALL persons over the age of 18 should have a general durable power of attorney for finances and for health care written by or obtained from some knowledgeable source so that all or as many problems as can be anticipated are anticipated before tragedy strikes. Once a person is 18 years of age, the person’s family members (parents) can no longer make decisions for them, hence if tragedy strikes and no powers of attorney exist, a family can be subjected to lengthy court proceedings in order to handle their loved one’s affairs.

Charles J. Dyer, Esq.
Dyer & Ferris, LLC
3411 N. 5th Ave., Ste. 300
Phoenix, Arizona 85054
Phone: (602) 254-6008
Fax: (602) 257-4276