How do caregivers take over the administration of estates and care for people who seem unable to look after themselves and their financial affairs? In this Sharepost I look at how Alzheimer's can affect judgement, their capacity to make decisions and their competency. It is important that caregivers help to protect the legal and human rights of someone with a progressive form of dementia like Alzheimer's at the same time as implementing any healthcare plan they may need.
1. There are two words that will be used and which are important to know about; they are capacity and competency. Although these words are sometimes used interchangeably in everyday language they have a distinct meaning in a legal sense. Capacity is a clinical term that describes an individual's cognitive ability to understand or do something. Competency, is a legal term that refers to a judge's determination of an individual's ability to make decisions and their ability to understand the meaning and importance of an legal document.
2. We are all assumed to be competent unless proved otherwise.
3. Living with a dementia:A dementia such as Alzheimer's does not necessarily mean someone is incompetent. Most people with dementia are able to understand some level of the meaning of a given legal document. The level of understanding has to be evaluated for each document by a lawyer .
4. Insight and judgement is affected by Alzheimer's because it depends on a number of factors that include memory function, abstract thinking, intelligence and consciousness of the self. Insight into a diagnosis of Alzheimer's can be lead to caution, anxiety, depression, anger, and may therefore affect judgement. We all know that our emotional state can hamper decision making.
5. People with Alzheimer's may resist help from caregivers. This can be for a number of reasons. For example, from wanting to maintain their independence, even when this is no longer possible, to not trusting a relative with their financial affairs. It may be because they are suffering from a coexisting mental illness such as paranoia, or be the result of organic destruction of the brain.
6. The requirements for legal capacity can vary from one legal document to another. A lawyer can help the person affected by Alzheimer's and their relative, caregivers or guardian to decide to what level legal capacity is required for a person to sign a particular document.
7. Caregivers or a trusted family member, an attorney and the patient's doctor should all have copies of any legal documents that are filled out.
8. Depending on the State, various legal terms are used to describe a surrogate who may make decisions on behalf of someone who is incompetent. These terms include guardianship, conservator, and fiduciary. Guardianship is often sought when close relatives believe that their relative with Alzheimer's no longer has the capacity to look after themselves. A court then rules on the person's competency.
9. We have to have an appreciation that someone with Alzheimer's still has choices and those choices, wherever possible, should be respected.
10. Durable Power of Attorney is a legal document that gives an individual the right to step in and make decisions for a specified person if they become incapacitated. Two are needed; one for health decisions and one for finances.
More Information and Links- Legal Issues in Dementia Care
The Alzheimer's Foundation of American Petitioning for Guardianship
Take Care of Legal Issues Now, and Eliminate Stress Down the Road says Dorian in her informative sharepost
The National Academy of Elder Law Attorneys can provide information and referrals.
The Partnership in Caring, Legal Issues for the seriously ill from the American Bar Association Helpful first step for information.
Published On: January 26, 2010