Planning for Potential Future Diminished Capacity

Coauthored by Kristine M. Scott, Estate Planning Associate

In the United States, roughly 13% of the total population (or 40 million people) are 65 or older. Of these, about 30% have some form of cognitive disability. Further, about 39% of individuals 85 years and older are so afflicted.

Luckily, with the help of your attorney and a little planning for the future, there are legal steps that can be implemented to provide family members the ability to maintain critical aspects of their loved one’s life despite having diminished capacity, without the need for a court-supervised guardianship proceeding.

Generally, these steps include executing some combination of durable powers of attorney, living will, healthcare surrogate designation (i.e., medical power of attorney), and preneed guardianship designations.

But how do you know when you should keep a closer eye on Mom or Dad? The American Psychological Association (APA) states that signs of diminished capacity fall into several categories:

  1. Cognitive signs of diminished capacity: short term memory loss, communication problems, comprehension problems, or disorientation
  2. Emotional signs of diminished capacity: significant emotional distress and emotional liability/inappropriateness
  3. Behavioral signs of diminished capacity: delusions, hallucinations, or poor grooming/hygiene

After consultation with your family member’s physician, if you fear that your loved one suffers from diminished capacity, inquire as to whether they have the above diminished capacity documents.  If not, encourage them to do so; otherwise the only alternative as the problem increases may be an expensive, time-consuming legal guardianship proceeding, which can be extremely traumatic for the individual involved. 

How Diminished Capacity Planning Documents Avoid the Need for Guardianship Proceedings

Durable Power of Attorney

A Durable Power of Attorney (“DPOA”) allows someone to act on behalf of the individual who executed the document in financial and legal matters.

Unlike a general power of attorney, a DPOA is not invalid upon incompetency. The DPOA would allow the named individual to perform various tasks, such as open and close bank accounts, deal with insurance carriers and billers, change mailing addresses, create special income trusts to qualify their loved one for Medicaid, or create/amend revocable trusts.

The DPOA can be tailored to allow as much or as little power to the named individual as desired.

Living Will/Designation of Healthcare Surrogate

Generally, a living will documents your wishes in regards to life-sustaining treatment and provides your family doctor and loved ones with instructions as to whether or not you want to terminate life-prolonging procedures when you are terminally ill.

The designation of health care surrogate, which is often included as part of the same document as the living will, designates an individual, most likely a family member, to make health, medical, and surgical decisions on your behalf if you become incompetent or disabled.

The designation of health care surrogate gives the named individual the legal authority to make any medical decisions on your behalf and, perhaps even more importantly, allows your healthcare providers to talk to that person about confidential medical information.

Designation of Preneed Guardian

Even with successful diminished capacity planning, there may be instances where a guardianship is needed. However, you may designate who you would want the court to appoint in such a situation.

A designation of preneed guardian documents your wishes as to who the court should choose, and the court must respect your wishes (unless there is evidence of improper conduct on behalf of the named person). Allegations of family disharmony should not be enough to overturn your documented wishes.

While we recommend everyone have these documents in place, they are especially important where there is a “significant other” or other close friend, who an individual would rely on in these difficult situations. Absent these documents, a family member can almost always prevail and can even exclude that significant other or friend from accessing you.

Planning for possible future diminished capacity can significantly mitigate the time and cost of caring for an incapacitated loved one if necessary documents have been executed.

If you think it is time to do some planning for the future, please call us at (904) 807-2183.