The people's voice of reason

My husband is beginning to show signs of dementia, maybe even Alzheimer's. What type things should I do to prepare us should he become incapacitated?

I think that you are doing the hardest thing and the best thing for your husband and yourself by facing this right now. When our loved ones are faced with such devastating diseases it’s easier to not face it and believe they will improve. Being proactive will have you prepared.

First I will advise that you visit an attorney that can assist you with estate planning. The three basic documents that your husband will need (and you) are a Last Will and Testament, Power of Attorney and an Advance Directive. Even if he has these documents, if they were prepared more than 3-5 years ago or there have been other significant changes in your lives (family, health or financial), then I would advise that you both consider new documents.

If your husband is in early stages as you state and still has times of clarity, then he should be able to state his wishes for a Will, The capacity requirement for a Will is lower than that required to have a Power of Attorney and Advance Directive prepared. As I have said so often, if you don’t have a Will, the State of Alabama has one for you via the rules of intestacy. As an example, the share for the spouse is stated in the following manner:

§ 43-8-41. Share of the spouse

The intestate share of the surviving spouse is as follows:

(1) If there is no surviving issue or parent of the decedent, the entire intestate estate;

(2) If there is no surviving issue but the decedent is survived by a parent or parents, the first $100,000.00 in value, plus one-half of the balance of the intestate estate;

(3) If there are surviving issue all of whom are issue of the surviving spouse also, the first $50,000.00 in value, plus one-half of the balance of the intestate estate;

(4) If there are surviving issue one or more of whom are not issue of the surviving spouse, one-half of the intestate estate

Without a Will you can see that you might end up with significantly less than what you thought. Additionally, the Administrator (Personal Representative) must be bonded and an inventory is required of the assets of the decedent. A Will usually states there will be no requirement of a bond or inventory.

The next document is a Power of Attorney (POA). While there are different types there are two popular types of a POA. The Durable Power of Attorney is probably the most popular and must contain a statement that the POA is effective even in your incapacity to make it durable. The other is a “springing” POA in which a certain event must occur to have it “spring” into action. Such an event may be your incapacity, which would have to be established by a physician. It can make the effectiveness a bit subjective. One of my attorney friends has compared the two documents by asking, “If you are going to trust someone under your POA when you are incapacitated, why not trust them now?” Alabama has adopted a Uniform Power of Attorney Act, which will be effective 1 January 2012. There is a statutory form, but I think most attorneys will prefer to work the statutory form into their own tried and true document. The new form does NOT invalidate prior POA’s that meet the legal definition of an effective Alabama POA.

The capacity requirement to name someone to act under your POA is roughly the required capacity to enter into a contract. As an example could your husband enter into a contract to buy an automobile?

The final document is the Advance Directive. It consists of the Living Will and Health Care Proxy. It allows you to make decisions about life support measures and artificially provided food and hydration should you be in such a condition that you will die in the near future and are unable to communicate your wishes about your health care.

Additionally, you will want to consider future care. Are you and your family willing and able to provide care for your husband at home? Alzheimer’s patients can become violent at times and family members have been hurt badly by loved ones because they allowed the affected family member to get between then and an escape route (out of a room). Will you want to hire sitters? What about Assisted Living? Assisted living can only keep Alzheimer’s patients for a certain portion of their illness. After that it is necessary to go to a SCALF (Specialty Care Assisted Living Facility) or to a skilled long term care facility (nursing home). If your husband is a veteran he may be eligible for VA care if necessary. You also have to consider how to pay for the more advanced care. If very wealthy you can pay for it or if poor you can have Medicaid cover it in the case of being impoverished. For those in between there may very limited Medicare coverage, selling assets to cover the cost, a viatical settlement of an insurance policy, a reverse mortgage (I am not fond of these in most cases as they require payoff within six months after the last person dies or leaves the home permanently) for in home care or the very best is a long term care insurance policy. If your husband is having symptoms of dementia, has other major health issues or is elderly he may well not be eligible to purchase such insurance. I think long term care insurance is the best hedge against the potential for long term care, but it is always a gamble as with many insurances as you may never need it, just as you may never need homeowner’s or car insurance.

Also consider what you might do if you have to take the car keys away from your husband. This will probably need a family pow wow and a visit to the doctor. The doctor can make an assessment with a promise of a future assessment if your husband needs to give up driving. This may give your husband something to look forward to and a reason to be more compliant if he believes he may get his driving privileges back.

Taking these steps will hopefully by pass most reasons to seek a conservatorship or guardianship through the Court in the future.

I hope that you will talk to your attorney or an elder law attorney about these things in the near future. The Alabama State Bar also has a referral service if needed.

This article is informative only and not meant to be all inclusive. Additionally this article does not serve as legal advice to the reader and does not constitute an attorney- client relationship. The reader should seek counsel from their attorney should any questions exist.

"No representation is made that the quality of legal services performed is greater than the quality of legal services performed by other lawyers."

Mailing address: Ronald A. Holtsford, Esq. Ronald A. Holtsford, LLC

7956 Vaughn Road, Box #124, Montgomery, AL 36116 (334) 220-3700


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