Cognitive decline is a common issue associated with advanced age. Some people develop medical conditions, such as Alzheimer’s disease, that cause dementia. Others may simply find themselves more confused and less organized as their age increases.
State statutes allow concerned parties, including professional caregivers and family members, to seek legal authority when there are concerns about an individual’s capacity for independent living. Other adults could request guardianship or legal authority similar to that held by parents. They could also ask for a conservatorship, which essentially gives an outside party control over an individual’s finances.
Both conservatorship and guardianship strip someone of their independence. Thorough estate planning can potentially help aging adults diminish the likelihood of a guardianship or conservatorship in the future.
People can select who assists them
An estate plan cannot prevent an individual from experiencing cognitive decline. However, estate planning can protect people from the worst possible outcomes, such as someone with malicious intentions obtaining conservatorship or guardianship. The people who seek control over an aging adult or their assets may do so for their own enrichment, rather than the protection of the vulnerable person.
By the time an older adult experiences cognitive decline or gets diagnosed with a serious medical condition, it may be too late for them to choose the person who supports them. They may have already lost their testamentary capacity, meaning that they cannot create legally-binding documents anymore.
Adults who plan in advance before their capacity declines can draft durable powers of attorney. These documents have special language that allows their authority to remain intact even after the person who drafted the document becomes permanently incapacitated.
Older adults can select someone trustworthy and reliable to oversee their daily lives and their financial affairs. Even if the courts deem the older adult permanently incapacitated, the durable power of attorney should retain its authority. Instead of being at the mercy of whoever chooses to take legal action, older adults can empower someone trustworthy and competent.
Creating or expanding an estate plan can help people avoid scenarios in which others take advantage of them while they are at their most vulnerable. Planning for the possibility of incapacitation later in life can protect people from a very challenging scenario that could otherwise leave them quite vulnerable.