Dealing with a parent’s dementia diagnosis can be overwhelming. However, confronting potential legal challenges head-on before the disease progresses can be one of the best ways to protect your parent’s lucid wishes.
There are two legal documents that should be created or reviewed immediately after diagnosis—a Will and a Power of Attorney (a “POA”). These documents are in addition to healthcare planning.
A diagnosis of dementia does not automatically preclude your parents from putting a Will or POA in place. Testamentary capacity (the mental capacity to understand and make a Will) is a legal construct, and is not determined by a medical diagnosis. In other words, neither advanced age nor the existence of a particular disease is itself evidence of a lack of capacity. If your parent has “good days” and “bad days” it may be possible to make a Will or a POA over a series of these “good days”.
Where the Will was made decades ago, it must be reviewed, as soon as possible after the dementia diagnosis, to determine whether anything has changed. Too often we hear from honest or well-intentioned children who have discovered that their parent’s Will does not reflect what the parent would want. Unfortunately, if these issues are discovered after the disease has advanced too far, the parent will not have the legal capacity to change the Will.
In addition to changes in circumstance, the Will should be reviewed by a lawyer who can identify changes in the law. The B.C. law surrounding Wills and Estates has seen significant development in the last 40 years, with the most recent overhaul taking place in 2014 with the introduction of the Wills, Estates and Succession Act.
One of the most commonly overlooked but valuable legal documents for families dealing with dementia is a POA. A POA provides the person named (the “attorney”) with the ability to manage an incapacitated individual’s (the “donor’s”) financial affairs. Most commonly, the child is appointed the attorney for their parent. This not only allows the child to access funds and pay for necessities for their parent, but turning control over to the children also provides protection from fraudsters who target our vulnerable seniors.
Don’t make the mistake of assuming that because your parents have a Will, they must also have a POA. POAs were not commonplace until about 20 years ago. If the Will was made prior to that, likely the POA was not put in place at that time. Also, it’s important to ensure the POA names an alternate attorney. If the POA was made a few decades ago, there was likely no consideration given to who should step in, if both parents becomes incapacitated, or one parent dies. The most useful POA appoints a primary (typically the spouse, while alive and capable) as well as an alternate (such as a child).
Particularly in situations involving loss of mental capacity, advance preparation can offer great comfort by creating certainty in uncertain times.