Estate planning lawyers often deal with clients who fear developing dementia or Alzheimer’s disease. Frequently the two terms are used interchangeably. What’s the difference? Or is there one?
Dementia is a syndrome, not a disease. A syndrome is a group of related symptoms that doesn’t have a definitive diagnosis. Dementia is a group of symptoms that affect cognitive ability, such as memory and reasoning. Within the group known as dementia there can be definite diseases, such as Alzheimer’s, Parkinson’s and Huntington’s diseases.
Alzheimer’s disease is a specific disease that causes progressive brain impairment. It has no known cause and no cure is currently available.
Both dementia and Alzheimer’s, along with any other condition that causes memory loss or loss of one’s capacity to reason (cognitive ability) are of concern to the legal profession and should be of concern to families because these conditions can render a person unable to deal with her property. When that situation arises, unless prior steps have been taken to provide for managing the person’s property, a court-appointed guardian might become necessary. A guardianship is a court process whereby one person is determined by a judge to be incompetent to manage his own affairs and a second person, a guardian, is appointed. The guardian is often under the supervision of the court and must file periodic reports. Guardianships can be expensive and the appointment of a guardian is always a sad proceeding as family members have to go before a judge and describe their loved one’s deteriorating mental condition.
Fortunately, there are preventive measures that can be taken to avoid a guardianship. These include creating a trust, appointing someone as attorney in fact for someone, by giving that person a power of attorney to act for them, or by transferring property into another person’s name. Each of these has advantages and disadvantages. Usually creation of a trust is the most complete and safest solution. Regardless of which path is taken, it must be taken before dementia develops and progresses to where the individual cannot deal with her own affairs. Once matters have reached that point, by definition the person cannot create a trust, give a power of attorney or even transfer property because she doesn’t have the mental capacity to do so. In that case, the only solution is a guardianship.
If you have concerns about dementia, either for a family member or yourself, we can help. Please contact us.