When Forgetfulness is a Problem

Head, shoulders, knees, and toes. We learned those body parts as youngsters as we sang along to the song. As we age, we often find that our head, shoulders, knees, and toes don’t quite work like they used to. While these physical ailments can be a sobering reminder that we are not 25 years old anymore, most of us are more concerned about what may happen to our head. Many older adults experience forgetfulness. While some memory loss is a normal part of aging, it can sometimes mean more. An estimated 6.2 million Americans age 65 and older are living with Alzheimer’s dementia.

Having a plan in place specifically addressing physical and mental disability not only helps us, but also helps our families. For example, if it becomes too difficult for us to leave the house and we need to go to the bank, naming a person in a financial power of attorney can allow that trusted person to visit the bank for us. Another example is if we become unable to communicate with our doctor, we can give that trusted person the power to make medical decisions on our behalf through a healthcare power of attorney.

This blog addresses several ways in which we can plan ahead for possible Alzheimer’s or other dementia.

ESTATE PLANNING

Estate Planning is often used as an umbrella term for planning for death and disability. Many people only think of estate planning as deciding how we distribute our property after we die, but estate planning can do so much more – including helping us plan for a dementia.

Unlike a will, which does not really help plan for our disability, a revocable living trust not only makes plans for after death, but also plans for what happens during our life. This includes planning for what happens if we become disabled or incapacitated. Such living trusts can specify not only who handles our property if we become disabled and unable to manage our financial affairs, but also whether or not we desire to remain in our residence instead of going into long-term care facilities, how money should be distributed or gifted to as long as we are living, and what happens to our pets or other property if we can no longer care for them.

HEALTHCARE DECISION-MAKING

A healthcare power of attorney (HCPOA) allows other people (called “agents”) to make medical decisions for us when we are unable to communicate those medical decisions. The agent(s) should be someone we trust to make medical decisions for us. While we cannot appoint our doctor as the “agent”, most people name their spouse, child, or other trusted person. Unless we put limitations on our agent, our agent has broad authority over our medical care. For example, if our dementia advances so that we cannot communicate our medical wishes, our agent can make decisions about medicines, treatments, and doctors, unless our HCPOA expressly limits our agent from making certain decisions.

The term living will is a frequent source of confusion. The “living will” is often confused with the “will.” The purpose of the North Carolina living will is to give directions to medical providers about whether or not to continue life support in three situations at the end of life. Those three situations are when we:

have an incurable or irreversible condition that will result in our death within a relatively short period of time; or

are unconscious and, to a high degree of medical certainty, will never regain consciousness; or

suffer from advanced dementia or any other condition which results in the substantial loss of cognitive ability and health care providers determine that, to a high degree of medical certainty, this loss is not reversible.

Many people ask what is the difference is between a living will and a DNR (Do Not Resuscitate Order) or MOST (Medical Orders for Scope of Treatment). A DNR states that if your heart stops or you stop breathing, medical professionals should not attempt to revive you. A MOST is an order signed by a medical professional, based on the patient’s medical conditions and wishes, to clarify which treatments will be withheld or offered. The MOST is similar to a DNR but allows the patient to request CPR.

A medical provider must first obtain a HIPAA Authorization form from a patient before their protected health information can be shared with others. When you visit your doctor and sign a HIPAA form those only apply to that specific hospital or doctor and some may expire after a certain period of time. A standalone HIPAA Authorization is needed to clearly authorizes your health care providers to communicate with your family and loved ones.

FINANCIAL DECISION-MAKING

The power of attorney (POA) is a basic and essential planning tool for financial affairs, especially when we become sick or unable to effectively manage our finances. The typical power of attorney allows you to name someone who can manage your finances and sign legal documents on your behalf.

A power of attorney is like a “spare key” to our home. We may give a trusted, responsible neighbor our spare key, because we may be out of town and need someone to make sure the stove wasn’t accidentally left on, bring in the mail, feed the fish, etc. We trust this neighbor to act in our best interest and to not take advantage in using the spare key. Legally, anyone you name as having the power of attorney, must act on your behalf.

The risks of becoming incapacitated without a POA in place are great. A power of attorney can help prevent the need of going through a public court process called guardianship, which involves both court costs and attorneys fees, delay, and court supervision. Having an agent serving under the POA can potentially allow that agent to manage our financial affairs without the need for guardianship.

All of these decisions are delicate and need to be handled with care. The attorneys at Strauss Attorneys, PLLC draw on a wealth of client interaction and dealing with these issues daily. We stand ready to help you navigate the issues.

You can schedule an appointment at our Asheville office at 828-258-0994, or to make an appointment with our Hendersonville office call 828-696-1811. We now also have our newest location in Raleigh, North Carolina. To make an appointment with our Raleigh team, call 919-825-0932.