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Dementia, Alzheimer’s, and Diminished Mental Capacity:

How it Affects Your Patient, Resident, Client, or Loved One on the Long-Term Care Journey

By: Anthony B. Ferraro

Navigating the Long-Term Care Journey

In the previous installment we mentioned how important it is to begin senior estate planning or traditional estate planning with the execution of
powers of attorney for both property and healthcare matters. Quite often we take for granted the notion that these documents will be something that are easy to have signed.

However, when a person has diminished mental capacity
, sometimes it can be difficult or impossible to have such documents executed by a patient, resident, client or loved one because they no longer possess the required cognitive capability to sign the documents legally and ethically

This is an impediment, even if we know that the documents would be good for them to have. If cognitive capacity does not exist, the documents cannot be signed, legally or ethically, even if the individual can go through the physical motion of signing their name. This is because even though they may be able to sign their name, they may not understand what it is they are signing.

Sometimes circumstances are very clear-cut as to whether mental capacity exists, but sometimes the facts surrounding behavior are not so clear or not so well understood.

What can be done then?

In situations where it is not clear as to whether a person has mental capacity, the attorney may need to seek consultation from a medical professional or mental health expert. 

If a formal assessment is required, the attorney usually attempts to obtain the consent and cooperation of the client, if that is possible. Sometimes this can be upsetting or embarrassing to a client. Nevertheless, the determination of mental capacity is something that must be established before other matters encountered on the Long-Term Care Journey.

Assuming that either the consent of the client is obtained, or perhaps the client cannot consent, then who should a lawyer look to as a referral for consultation on matters of diminished mental capacity?

If the patient, resident, client or loved one is fortunate enough to have a physician regularly attending to them, then reaching out to that physician may be the first order of business. Sometimes however, primary care physicians may decline to opine on matters pertaining to mental capacity as they may feel that they are not trained sufficiently to administer psychiatric, neurological, and psychological assessment tests.

It should be noted that effective January 1, 2023, the State of Illinois passed a new law indicating that any person seeking licensure to practice medicine in all of its branches is to have completed three hours of education on the diagnosis, treatment, and care of individuals with cognitive impairments, including, but not limited to Alzheimer’s disease and other dementias.  Illinois Senate Bill 0677.

If the attending physician will not undertake the assessment, you may look to other geriatric assessment professionals that can often take a multidisciplinary approach to determining mental capacity. 

Keep in mind that the determination of mental capacity is sometimes complicated by the fact that mental capacity
vary from day to day and can vary from task to task. This means that an individual can have the capacity for one type of task, for example, the execution of a power of attorney for healthcare, but may not have the sufficient capacity for the execution of a power of attorney for property that has gifting and asset repositioning authorizations written into the document. 

Why the difference?

The reason is:
the former task (executing a power of attorney for healthcare) has a lower cognitive capacity standard or threshold that must be met to establish capacity. The latter task (executing a power of attorney for property) has a higher cognitive capacity standard that must be met, which standard is, for example, closer to the standard that must be met to knowingly execute a contract.

These varying degrees of capacity are why it’s important to select professionals that are trained to parse the levels of capacity needed based on the specific tasks that are being contemplated. As you can see this can become complicated. 

The Takeaway:

Obtain and sign
powers of attorney for healthcare and powers of attorney for property, as well as any other applicable and appropriate estate planning documents that you need for either “senior” estate planning or traditional estate planning, as soon as possible. Waiting until a person one reaches the later stages in life, creates the risk that in those later stages, you may not have the requisite mental capacity to execute the documents that you need.

The problem that arises: 

 If you do not have the requisite mental capacity to execute documents legally and ethically, it may be necessary for counsel to engage in a protective action such as an expensive guardianship proceeding in the State of Illinois court system. For example, let’s assume the senior resides in the City of Chicago. At this time, in the Circuit Court of the County, the waiting period for a hearing on a guardianship petition can take as long as 4-6 weeks, or longer, due to tremendous case backlog in Cook County. This creates unnecessary expense and time delay that can be avoided with the timely execution of estate planning documents such as powers of attorney for property and powers of attorney for healthcare.

In our office we recommend people execute powers of attorney when they are 18 years of age! Obviously, the type of powers of attorney that an 18-year-old may need will be quite different than that of an 88-year-old, but the point is you need to get these documents in place sooner rather than later.

Don’t fall into the trap of helplessness that diminished mental capacity can create and possibly be permanently
locked out of your constitutional right to self-determination, regarding your own health needs, property matters, estate plan, and other related matters.

The Illinois Rules of Professional Conduct require attorneys to identify unsolicited communications to prospective clients as Advertising Material. If the context requires, please consider this letter and the enclosed literature to be Advertising Materials.

This document is for discussion purposes only and is not intended to be, nor should it be, considered as legal advice. You should never attempt Medicaid planning, Estate Planning, Probate or Trust Administration without the advice of competent legal COUNSEL.