Judd Matsunaga
Just how long has it been since you’ve “lost your mind”? The possibility of developing dementia is perhaps the most important challenge that older adults will face. Yet, advance planning for aging is very hard for most older adults to address. We intuitively know why: It’s hard and unpleasant to think about future aging problems — especially when it comes to loss of independence.
Experts estimate that about 30 percent of people aged 85 or older have dementia, with the risk of dementia increasing rapidly as people reach age 90 or older. Although encouraging recent research suggests that the risk of dementia at a given older age is going down, this is still going to be a common problem for the foreseeable future.
Older adults have an expectation that their adult children would help them out but had not discussed this in-depth with their kids, nor have they completed the advance planning documents that would be needed for their children to step in and assist. What’s more, adult children often avoid the discussion because the last time they brought it up, mom (or dad) got upset.
In fact, it’s quite common for older adults to become very anxious and/or defensive about their abilities. Some become quite paranoid about others trying to control them. This is a problem because not only does the older person become distressed when a family tries to talk about the future, but in dementia, “thinking” and “reasoning” also usually gets worse when a person is anxious or stressed.
So, once mild dementia has developed, conversations about the future and delegating authority to others become much more difficult than they would have been before. (And these conversations are not easy even with older adults who have good cognition.) Yet, for the well-being of older adults, these difficult and uncomfortable conversations are required.
That’s because it has profound repercussions for financial safety, impact on family caregivers, safety at home and, of course, the ability for the affected person to make decisions. Planning ahead can enable an aging parent’s adult children or other trusted individual to assist with medical, financial and legal matters, should the aging parent lose mental capacities.
Home safety can be an issue if an older adult with dementia wanders or leaves the stove on. Many older adults are also vulnerable to falls, which can especially be problematic for older adults who live alone and may be unable to get up or get help after a fall, especially if an injury is involved. You need to plan for it.
According to board-certified Dr. Leslie Kernisan, MD MPH, whether you are planning ahead for medical, financial or legal issues (often interrelated), there are three Key Steps for All Advance Planning for Aging (www.betterhealthwhileaging.net):
- Anticipating common aging-related life challenges, either because they are very likely to happen (e.g., eventual advanced dementia in someone recently diagnosed with mild dementia) or are common and significant (e.g., a serious fall while at home alone).
- Planning ahead in order to minimize the stress, financial problems, family strife and health harms that people often experience when these challenges come along and no planning ahead has been done. All planning should involve conversation with family members and others likely to be involved in a person’s age-related life challenges.
- Completing necessary legal documents and documenting one’s plans, preferences and values.
Legal documentation is required for certain things, such as enabling a family member or other trusted individual to act on one’s behalf if one becomes incapacitated by illness or injury. Additional documentation of preferences and values isn’t legally required but can provide valuable guidance to surrogate decision-makers, clinicians, family members and others who might be later involved in an older person’s care.
As an Elder Law attorney, I can address the third step listed above: Completing necessary legal documents. I’m going to briefly cover the Big 3 necessary legal documents: (1) Living Trust, (2) Durable Power of Attorney for Assets (DPOA) and (3) Health Care Power of Attorney. Every adult should execute all three.
Revocable Living Trusts: Living Trusts are an estate planning tool to avoid probate court upon death. Probate is a waste of time and a waste of money. The law allows you to avoid probate by putting your assets into a revocable living trust. Stop procrastinating. There’s no disadvantage to you because you can appoint yourself the trustee of your own trust and remain in full control. If you already have a trust, it wouldn’t be a bad idea to have it reviewed every few years.
Durable Power of Attorney for Assets (DPOA): If you develop Alzheimer’s and lose the thinking abilities needed to soundly make decisions related to the management of one’s affair, YOU choose who will be your attorney. Without one, families must resort to seeking guardianship in court. This is an expensive and difficult process.
Health Care Power of Attorney: The HCPOA specifies the surrogate decision-maker for health care and often designates a back-up surrogate as well. This surrogate decision-maker is usually a family member, a close friend or sometimes a professional fiduciary. The HCPOA is often included as part of an advance directive document (sometimes called a living will) that may include additional information regarding preferences for care at the end of life.
In conclusion, advance planning for aging can help if there is a sudden illness or other unexpected quick decline in mental abilities. Planning ahead will help to minimize the stress, financial problems, family strife and health harms that people often experience when these challenges come along and no planning ahead has been done. All planning should involve conversation with family members and others likely to be involved in a person’s age-related life challenges.
Judd Matsunaga is the founding attorney of Elder Law Services of California, a law firm that specializes in Medi-Cal Planning, Estate Planning and Probate. He can be contacted at (310) 348-2995 or judd@elderlawcalifornia.com. The opinions expressed in this article are the author’s own and do not necessarily reflect the view of the Pacific Citizen or constitute legal or tax advice and should not be treated as such.
