- What is the current stage of the illness?
- What needs will we be expected to met?
- How well can they care for themselves?
In addition, a qualified elder care attorney may be able to help with the following important questions:
- To what extent can they understand their affairs, financial and otherwise?
- Will they qualify for any federal or state benefits? If so, which ones?
- Who, if anyone, is available and able to act as the primary caregiver?
There are two accepted levels of mental capacity. Generally, the person must be of “sound mind and memory” – known as testamentary capacity – for the execution of a valid will and/or testamentary trust.
To be of sound mind and memory, people must:
- know they are making a will;
- know and remember the natural objects of their bounty;
- comprehend the character and extent of their property; and
- make the disposition of their property according to a plan formed in their mind
The other level of capacity is termed “contractual capacity” and is required for the execution of binding agreements such as trusts, deeds, and non-durable powers of attorney. Contractual capacity is defined as the ability to comprehend and understand the terms and effect of the contract.
Successor agents – those who would take over power of attorney duties from the original agent – may come into play and even hold a person’s life in their hands if the best agent is “unavailable.”
Even if an individual is a third or a fourth successor agent, if the higher-priority agents are unavailable, then whichever agent is available will make the final decision. An agent is considered “unavailable” if “the person’s existence is not known; the person has not been able to be contacted by telephone or mail.”
Always make sure to provide the full contact information of agents into the power of attorney. This simple act makes it easier for health-care providers to communicate with the highest-priority agent during a time of crisis.
If you’re ready to start getting your estate in order and secure your assets for the “worst-case” scenario, please give our office a call at 800-310-3100. Your first consultation is absolutely free. We’ll let you know what steps you need to take, right now, to protect yourself and your family. Call now.
Rick L. Law, Attorney, Estate Planner for Retirees.
Rick was named the #1 Illinois elder law estate planning attorney by Leading Lawyer Magazine. He has been quoted in the Wall Street Journal, AARP Magazine, TheStreet.com, and numerous newspapers and articles. Rick is the lead attorney for Law Elder Law, LLP, focusing in Estate Planning, Guardianship, and Nursing Home Solutions. His goal is to give retirees an informed edge when it comes to dealing with an uncertain future. Get flexible retirement strategies that work during good times and bad, plus information on how you can save your home and assets from being used to pay for long term care.
By Rick Law, Elder Law and Estate Planning Attorney at the Estate Planning Center at Law Elder Law in West Suburban Aurora, IL. Just off the I-88 Tollway.
There are several important questions that every person should ask their healthcare provider when a loved one has been diagnosed with dementia. Some of these questions include: