Dementia - Trust and Estate Planning Law Office

Looking Ahead: Estate Planning for Early Onset Alzheimer’s and Dementia

Alzheimer’s and dementia are two of the most common fears that come with age, especially if you have a genetic predisposition to these diseases. The tragedy of these conditions is that there is truly nothing you can do to stop yourself from losing your memory. However, as you face this stark reality, it is important to be aware that there are steps that you can take, from a legal perspective, to set up your descendants for success before it is too late. When creating an estate plan, you must legally be of sound mind. If the attorney has any doubt that you have the capacity to make your own decisions, they are obligated by law to consult with a doctor. If you are at risk for developing early-onset Alzheimers, it is important to avoid delaying your estate planning journey.

Appointing a Power of Attorney

One of the most integral steps to take if you are at risk of developing Alzheimer’s or dementia is appointing a power of attorney. This allows you to communicate your healthcare preferences through legal documents. This also ensures that your medical and personal care decisions are aligned with your values and preferences, even when you are no longer able to make decisions due to cognitive decline.

A power of attorney should be bestowed on the person that you trust most to make medical decisions on your behalf when you are no longer able to do so. Your healthcare proxy will be the person advocating for you and reflecting your wishes. A durable power of attorney is equally as important. The person that you chose for this role will handle your financial affairs, pay bills, manage investments, and make any decisions regarding property or the law on your behalf.

The Living Will

The fear with Alzheimers is that you will one day no longer be able to take care of yourself, and that you must rely on others to make decisions on your behalf. Perhaps the single most essential document in estate planning for early-onset Alzheimer’s and dementia is your living will. This document is crafted while you are in a sound state of mind, able to think critically about your future. A living will can contain any and all of your wishes for how you hope to live out the rest of your life. It gives you power over your future and gives advance directives to the people responsible for taking care of you. Your living will should include preferences for medical treatment and end-of-life care as well as your desires for life-sustaining treatment, organ donation, and other critical decisions.

Other Estate Planning Considerations

Just as you would with an ordinary estate plan, it is important to think about all of your assets and what you want their journey to be. There are various types of trusts that can be used to pass down different types of assets in a wide range of formats. While you can still make decisions, it is up to you to secure both your own financial future and the future of those you care about. You will need to designate guardianship for minors if you have children you will not be able to care for in the event of an early-onset of the disease. You should also consider your long-term care options and how they will affect your assets.

If you plan to go to a long-term care facility or receive government-subsidized at-home care, there are important considerations. Nursing homes and other long-term care facilities will drain all of your assets, even liquidating properties, before turning to state-subsidies. In order to protect the financial futures of your beneficiaries, it is important that you set up an irrevocable trust. An irrevocable trust separates the ownership and control of the assets it holds. This means that you can continue living in your house, but since the asset is no longer legally owned by you, it cannot be targeted by nursing homes or other creditors. After you pass away, the house will safely go to your beneficiary.

Navigating this process is extremely difficult, and likely impossible, without an experienced attorney by your side. A good attorney will set you up for success to the best of their ability in your personal, financial, and medical future. If you have any further questions about when it is the ideal time to begin your estate planning journey, please call the Trust and Estate Planning Law Office at (718) 333-2395 to take your next steps.

Article 81 Guardianship of an Incapacitated Adult in New York

As people age, they gradually lose the ability to care for themselves. There are also occurrences when a person becomes physically incapacitated and is unable to function without supervision as a result of physical impairment. Although these can be unpleasant situations for families, New York has provisions to provide care for those who can no longer care for themselves. One of these provisions is Article 81 of New York’s Mental Hygiene law, otherwise known as Article 81 Guardianship, which authorizes a court to appoint a guardian to manage the personal needs and/or finances of a person that cannot handle them on their own. The process of petitioning for guardianship is relatively swift and the powers of a guardian depend on the condition of the incapacitated person. However, all decisions must be rendered by a judge and approved by the court. During the petition process for guardianship, having an experienced guardianship attorney will help alleviate the burden placed on any family and ensure that guardianship hearings end favorably for the petitioning parties and all necessary powers are placed in the hands of a trusted guardian.

When Does Article 81 Go Into Effect?

Article 81 Guardianship is an authorization given by a court to a guardian to manage the personal and/or financial matters for a person that has been deemed by the court as incapacitated. Capacity refers to the ability for an individual to make decisions for themselves Each Article 81 Guardianship case is different because they involve different levels of incapacity and different powers allocated to each guardian. In an article 81 case, incapacity refers to common mental disabilities such as dementia, Alzheimer's, and physical impairments. The moment that an individual is proven to be mentally disabled, they are no longer legally eligible to sign any estate planning documents. Therefore, it is crucial that a healthcare proxy and power of attorney are signed beforehand in a right state of mind.

Some guardians might be given the authority to pay bills for an incapacitated person while others are given the authority to prevent self-neglect since the individual is unable to provide adequate medical and hygienic care for themselves. Other guardians might be given the authority to prevent financial abuse because elderly financial exploitation is an ever-present and fast-growing danger, or physical abuse, whether by family members, acquaintances, or those providing care. Guardians might also be authorized to engage in Medicaid and estate tax planning. In any case, having an experienced elder planning lawyer is important so that all powers can be assigned to trusted guardians and then enforced properly.

The Process of Petitioning for Article 81 Guardianship

Petitioning for Article 81 Guardianship is a serious matter and thereby has a dedicated and intricate process. In order to obtain Article 81 guardianship, a petitioner must file a case with the Supreme Court or county court where the incapacitated person lives. At the beginning of each Article 81 case, the person on whom’s behalf the petition is being filed is referred to as an “alleged incapacitated person” because their inability to care for themselves is, at the point, only an allegation. To begin an Article 81 case, the petitioner must complete four steps:

1. Fill out the following forms:

A petition: A written order asking the court to start a case.
An order to show cause: A written request asking the court to rapidly open a case which will also be used to inform the alleged incapacitated person that an Article 81 application has been filed in court and lists the powers the petitioner believes the guardian should have over alleged incapacitated person, among other things.
A request for judicial intervention: A request for a judge to be assigned to the case.

2. File a guardianship petition.

3. Pay a filing and index number fee.

4. Serve legal papers to all people involved in the guardianship case, including the alleged incapacitated person, within a time frame set by the court.

Once the Article 81 case is filed by the petitioner, a hearing presided over by a judge will occur within 28 days after they sign the order to show cause. The court will appoint an evaluator to speak to the alleged incapacitated person, evaluate evidence, and present a written report. After the written report is presented, a formal hearing takes place where a petitioner presents their case stating why the alleged incapacitated person needs a guardian, testimony is heard, and evidence is considered. At the end of the hearing, the judge will determine whether the alleged incapacitated person is indeed unable to handle their personal or financial matters and whether they appreciate the consequences therein of not being able to handle such matters. They then will attempt to find the least-restrictive remedy to protect the alleged incapacitated person’s independence as much as possible. If the incapacity is sufficient enough that the judge deems guardianship necessary, they will determine the powers allocated to the guardian, whether more than one guardian will be appointed, and the duration of the guardianship. After a guardian is appointed, the petitioner must have an order and judgment form signed by the presiding judge, and then send it, along with a notice of entry, to all those who received a copy of the verified petition. All guardians must complete a six-hour course where the duties of the guardian are explained.

The Implications of Article 81 Guardianship

As outlined above, petitioning for Article 81 Guardianship is an intricate process which should not be taken lightly. In the event that an alleged incapacitated person has not pursued a health care proxy or power of attorney prior to being diagnosed with a cognitive disability, an Article 81 proceeding is one of the few ways where an individual can obtain agent status over them. It is also important to note that courts can appoint temporary guardians or neutral guardians in the event that petitioners cannot agree on a guardian between themselves. Accordingly, it is crucial to find unanimity on an appropriate guardian and plan for all eventualities, no matter how unpleasant they might be to contemplate. Having frank discussions with aging relatives about the possibility of medical emergencies and incapacities can help to ease tension and ensure that the aged person understands there is a plan in place for their care. Having an experienced elder planning attorney will help in creating the best possible long-term health plan and ensure that guardianship hearings end favorably for the petitioner. To ensure appropriate care for a loved one and begin planning their estate, call the Trust and Estate Planning Law Office at (718) 333-2395.

What Are My Responsibilities As My Parent’s Guardian?

As parents reach their elderly years, sometimes people may find themselves in the position of being their parent’s guardian. Before obtaining guardianship for your parent (or parents), it can be helpful to know the responsibilities you will have to take on when you become a full-time guardian. Learning more about the possible incoming responsibilities can also help be a deciding factor for if you would rather take full responsibility of your parent or move them into a nursing home.

In some cases, you will be appointed to be a guardian if your parent:

Has dementia or Alzheimer’s
Has suffered from a stroke
Has cognitive issues
And a variety of other reasons

Oftentimes, it is common to seek guardianship of your parents after they have become somewhat incapacitated. It is easiest to be appointed guardian if both parties (you and your parent) are able to file notice with the court. The court takes into account age, mental/physical impairment, as well as the risk of harming themselves or others when considering guardianship. As long as your parent can display a reason for wanting guardianship, it is more likely that the court will grant the request.

So what will being your parent’s guardian actually look like?

After being appointed a guardian, there are some basic responsibilities to overlook:

Handling finances (such as paying bills, keeping financial records, etc.)
Consenting to medical treatment
Managing the estate and assets
Deciding on long-term care as well as end-of-life care

These responsibilities mentioned are just some of the many responsibilities that will eventually come to be. Being a guardian is a huge responsibility and takes a significant amount of time and energy. This position should only be done by someone who has the time and care for the parent. Remember, there are always other options for taking care of your elderly parent and that you don’t have to shoulder all the struggles on your own.

During your time as a guardian, you should always make sure that you are following your parent’s wishes to the best of your ability. If your parent still can, be sure to ask for their input and what they want. When choosing to be your parent’s guardian, you choose to give them the best life you can. Guardians are usually family and do not get compensated. For some people, being and taking care of their parent is more reassuring than leaving them in the care of a nursing home.

Being a guardian is not an easy job nor is it a role for everybody. In order for your elderly parent to live the best remaining life they possibly can, you can make the decision of if being their guardian will fulfill that or not. If you or a loved one is considering guardianship or options for elderly care, contact the Law Office of Inna Fershteyn at (718) 333-2395.

10 Warning Signs of Alzheimer’s Disease and Dementia

As our loved ones age, how do you know if they are showing normal aging changes or if they are showing early signs of dementia or Alzheimer’s? The most common type of dementia is Alzheimer’s. In 2020, according to the Alzheimer’s Association, roughly 5.8 million people were living with Alzheimer’s disease. Warning signs for Dementia vary, but changes to behavior, increasing confusion, and loss of memory are common signs. Noticing these signs early may help you and your loved one prepare for the possibility of dementia.

Every dementia patient experiences different symptoms with various severities, but there are some early warning signs you can find. These are 10 signs to look out for in order to determine if a loved one should seek a comprehensive medical workup and cognitive testing for dementia.

10 Warning Signs and Symptoms of Dementia

1.) Forgetfulness and Short-Term Memory Loss

Memory loss is the most common symptom of most types of dementia. Alzheimer’s affects short-term memory first which means a person can forget information they recently learned. However, just because someone can’t remember where they put their keys or switch up names it does not mean they have Alzheimer’s. We all forget parts of a conversation from time to time, but an early symptom of dementia can result in someone forgetting entire conversations that just happened. Dementia patients may also forget important dates and events and frequently ask for the same information repeatedly. Caregivers may have to give reminders more frequently whether it's leaving notes or calling to remind them of daily tasks.

2.) Lack of Concentration and Increased Confusion

Another common symptom of dementia is getting confused about times and places and difficulty concentrating. Both can make daily activities take much longer than they used to. Dementia patients can forget where they are, how they got somewhere, and can easily get lost navigating familiar places. As dementia progresses, patients may have trouble differentiating between past, present, future events. They can lose track of seasons and general passage of time which causes them to either show up to appointments or events at the wrong time or not show up at all.

3.) Losing things

Dementia patients could start to put things in more and more unusual places. We all can misplace our car keys or house keys from time to time but finding “lost” keys in the refrigerator could be a sign of dementia. Patients could lose things and then not be able to retrace their steps to find their missing things. However harmless this may seem; this can escalate into theft accusations when they can’t find their personal belongings that they have unknowingly misplaced. Patients can become paranoid and subsequently put their things in even more unusual spots to ward off the suspected thief. Suspicion and delusions may occur in middle-to-late stage Alzheimer’s.

4.) Difficulty Doing Familiar Tasks

Dementia can also affect one’s capability to do normal daily tasks. Patients could have difficulty with coordination and remembering how to complete multi-step processes like driving, cooking, or playing a familiar game. They may start to rely more on their loved ones to do things for them. Caregivers should maximize the patient’s independence and allow them to try and figure it out but should remain cautious. Dementia can also affect depth perception, distance perception, and color perception. Caregivers may notice increased clumsiness, accidents, falls, and uncharacteristic mishaps.

5.) Language and Speech Problems

Alzheimer patients will typically have trouble recalling the right words while speaking or while writing. Some patients can use stand-in words like “thingy,” “thingamajig,” “doodad,” or “what-cha-ma-call-it” and can make up their words or terms for actions. For example, someone with dementia might call a fridge a “cold space.” Because of these confusions or impaired speech abilities, they may also stop talking or writing abruptly.

6.) Problem with Simple Math

Math may not come easy to everyone, but people in early stage dementia may have difficulty completing basic math problems. They can find it difficult to work with numbers in everyday life such as budgeting, calculating tips, or even adding and subtracting. Caregivers should remain patient when helping dementia patients with this. Patients may feel embarrassed so it’s also critical caregivers remain non judgemental, offering help or corrections as suggestions.

7.) Poor Judgement

Depending on the patient, changes in decision-making, through process, and judgement could be a sign of dementia. If a person has made risky decisions all through their life, dementia may not be the cause of their changes in decision-making. However, if a logical person who usually carefully weighs all the options and makes informed decisions suddenly begins showing poor or reckless judgement, dementia could be the cause of that. For example, if they start recklessly spending, inappropriately dressing for the weather, or falling for obvious scams (Nigerian prince) those could be a sign of dementia.

8.) Personality Changes and Mood Swings

Personality changes and mood swings could be a symptom of dementia. Patients can become fearful, suspicious, paranoid, depressed, or anxious. Someone who is usually confident may become more closed off and shy. Patients could easily become more upset when they’re frustrated especially when they are put outside of their comfort zone. Caregivers can reduce the effects by creating a calm environment and avoiding or limiting environmental triggers such as light glare or background noises.

9.) Changes in Grooming and Personal Hygiene

Changes in grooming and personal hygiene such as not changing clothes, skipping showers, and not brushing their teeth are common signs of dementia. In addition, neglecting basic upkeep of their home such as allowing clutter to accumulate and not cleaning at all are common signs of dementia. Caregivers may have to help patients with grooming, maintaining personal hygiene, and cleaning. However in cases where patients may refuse help, it is best to remain patient and explain to patients how you can help.

10.) Withdrawing from Friends and Family

Increased withdrawal from social events that one normally enjoys attending could be a sign of dementia. Patients may avoid social activities to prevent drawing attention to their other symptoms such as memory lapses or difficulty communicating. Patients who are aware of their signs or symptoms of dementia may be less confident in themselves which leads them to avoid interacting with their loved ones. If loved ones or caregivers notice this, reassurance and making patients feel comfortable in an environment could help.

What to do if you notice these signs?

If you recognize any of these signs and think any of your loved ones may have a form of dementia such as Alzhmeir’s, you should make a doctor’s appointment promptly. An early diagnosis is crucial as it can check for curable conditions that can mimic symptoms of dementia, devise care and treatment strategies, and make legal and financial plans for the future. Should you notice any of these signs, elder law planning may be something you need.

If you and your loved one need estate planning, please contact the Law Office of Inna Fershteyn at (718) 333-2395 for legal assistance and enquiries.

How to Prepare a Loved One for the Possibility of Dementia?

Everything in life isn’t guaranteed and a life, where the best for you and your loved ones is not ensured, is scary. Having a plan for when those unexpected times arise in your life is the best way to ensure you and your loved ones are taken care of. Those approaching their elder years should be one of the first to ensure these plans are in place. Events such as an accident, stroke, heart attack, or something as serious as dementia can be extremely troublesome without the best plan in place. Not only should you consider making plans for your own well-being but encourage your loved ones to do so as well. This will ensure that a designated individual will be able to step in when times like this may occur in your life.

Discussing Legal, Financial, and Health Care Planning With Loved Ones

Though having such a difficult conversation with the people you love may be uncomfortable, the end goal is for you and your family to ensure everyone is taken care of, no matter what obstacles life throws at you. If you wait until your loved one is incapacitated or needs a caregiver it will be extremely hard, legally and emotionally, to be able to care for them when they need you the most. If this occurs you would need to endure the lengthy and complex process of guardianship in order to be able to control a loved one’s medical care and finances. Why put you and your family through this process when you can make a plan beforehand.

Timing Is Extremely Important

Getting your Elder Care planning done in advance is crucial, as in order to be able to sign all the legal documents in the process, one must be physically and mentally able to. In instances such as Dementia, early diagnosis can still hinder an individual’s ability to make decisions. In some cases, a senior may still be able to sign legal documents but this all depends on the progression of the disease and circumstances differ. This actively demonstrates why it is important to plan earlier rather than later. Though it can be difficult to bring up these matters with a loved one, you should try to make it clear that you intend to protect them and ensure that all their assets and life are put in the best scenario possible.

Crucial Documents Needed for Elder Care Planning

Last Will and Testament: A last will and testament is the first step in any Elder Care planning and indicates your wishes when you pass. This document indicates what is done with your assets and ensures your interests are met. We never know when we may pass and this document makes sure not only your interests are met but your loved ones are taken care of when this happens.
Durable Power of Attorney for Health Care: This is a document that will allow an individual to designate a person to make any medical decisions for them if they become incapacitated or unable to. Some decisions include choosing health care providers, nursing care, treatment, and end-of-life care. This document allows the individual to obtain medical records on your behalf as well. This is ideal for anyone as health can change, especially as you continue to get older, and this document will make sure you are taken care of if things don’t go as planned. Those with Dementia are not guaranteed a specific time frame for how fast the disease will progress so having a Health Care Power of Attorney will give them and their loved ones peace of mind when their loved one can no longer make decisions for themselves.
Durable Power of Attorney for Finances: This is a document similar to the Power of Attorney for Health Care, and allows you to designate an individual to make financial decisions for you when you become unable to do so for yourself. Some decisions that can be made on your behalf with this document include managing investments, selling property, taxes, and paying bills. This document is needed, as not only will your estate and assets be protected, but your interests will also be met if you ever become incapacitated. Why let a disease like Dementia or a medical condition stop your family from making sure your assets are taken care of when you can plan ahead.
Living Will: A living will is a healthcare directive that is drafted in advance to indicate an individual’s wish for end-of-life care or a serious medical crisis. This will be a clear indication of what you want to be done in regards to treatment if you are unable to and if the situation is life-ending. This document contains the instructions for the medical Power of Attorney and is important in the Elder Care planning process as leaving decisions like this to your loved ones will cause an immense amount of pain and regret. Your loved ones will not be left wondering what you would have wanted, but instead, know exactly what you want.

Hiring an Elder Care Attorney

Elder Care planning is hard on families and may not be the desired conversation, but it’s definitely a crucial step to ensuring your loved ones and you are taken care of at all times. Sitting down and creating a plan for what will happen in times of illness or losses is the start of your Elder Care planning. An Elder Care attorney can help make this process easier and ensure all your interests are met in a professional and legally binding manner. An attorney will inform you of all your options, and ensure all documents are legally binding and accurate. Discussing Elder Care options is hard enough for you and your family that’s why hiring an Elder Care attorney will allow you the peace of mind that your plans are in place in times of hardship. An attorney will help with the drafting of your Last will and testament, Power of Attorneys, and Living will, so you are ensured the best care.

For further information on how to start your Elder Care planning please contact the Law Office of Inna Fershteyn at 718-333-2395 to obtain aid in the drafting of legal documents and help with any of your Elder Care needs.