The Elder Law Coach

Epi 50: Navigating Dementia: Legal Rights and Client Capacity

• Todd Whatley

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Elder law attorneys regularly encounter clients with dementia, yet many misunderstand that a diagnosis doesn't automatically prevent someone from signing legal documents. Todd Whatley explains when and how individuals with dementia can execute valid legal documents and avoid unnecessary guardianships.

• Understanding dementia as a progressive condition affecting memory and reasoning differently across stages
• Document capacity depends on document risk – higher risk requires greater capacity
• Pushing clients to guardianship unnecessarily removes rights and limits planning options
• Essential documents include comprehensive powers of attorney, healthcare directives, and probate-avoidance planning
• Communication techniques: speak slowly, use simple language, schedule morning appointments
• Legal capacity assessment should be made by the attorney at time of signing, not solely by medical diagnosis
• Early planning remains crucial – encourage clients to complete documents while capacity is clearest

If you're interested in advancing your knowledge in elder law, Medicaid, VA, or estate planning for older people, I would love to work with you. Visit my website theelderlawcoach.com or email me at Todd@theelderlawcoach.com.


Check out our new website www.TheElderLawCoach.com.

Speaker 1:

Thank you. Specialized experience, Whether you're an established attorney looking to refine your expertise or an emerging lawyer seeking a successful foray into elder law, this is your masterclass. Now let's get started with the luminary in the field. Here's Todd Whatley.

Speaker 2:

That's right. This is the Elder Law Coach Podcast. My name is Todd Whatley and, as always, always, always I am very glad that you are here with us today. And I'm talking about a topic today that is going to come up in at least half of all of your meetings, and that is the client with dementia. And so many times, as an elder law attorney, you are going to have clients come in that do not have full capacity, and dementia affects millions of people and we, as elder law attorneys, deal with this probably more than most, and I come from this because this affected me way long ago.

Speaker 2:

When I first started this practice, I was a young green attorney, did not work in a big firm, I just worked for myself, and it scared me when attorneys were like you went to a nursing home and had someone sign documents, I was like, well, yeah, because they were fine, oh, you can't do that. People in a nursing home or people diagnosed with dementia, they can't sign documents anymore, and I'm like I know dementia. As a physical therapist, I've worked with people who had dementia and until the very later stages, they pretty much know what they're doing. They may not remember what they ate for breakfast, but they know what they're doing and they know who they want to be their agents, and that just made no sense to me. So I did some research and I did another podcast just on that topic. But this comes up so much. I wanted to do a podcast where we talk about the basics, some legal and ethical considerations I'll kind of breeze by that again just to make sure we all understand but then also the key legal documents that a senior needs, how to communicate with them, and then finally some takeaways on how we can do this. Okay, so this is not a absolute repeat of the previous podcast. If you've heard that one, don't leave me. Let's go through this and further expand that topic. But if you haven't heard my dementia podcast, I would highly recommend go back and listen to it, because people have told me Todd, that podcast pointed out some very important things, helped my thinking on this and I think it is absolutely one of my most popular podcasts. It's had the most downloads and so I would recommend go back and listen to it. Probably after this one, you can do this one, but then go back and if you leave this one thinking, I don't know people with dementia, can they really sign documents. Yes, they can go back and listen to that and that will, I think, very much clarify your thinking.

Speaker 2:

Okay, so, understanding dementia, what is it? It is simply a dementia is an umbrella term. That just means that the brain is kind of deteriorating like a muscle. It just deteriorates, it gets weaker and it doesn't do the job that it used to.

Speaker 2:

There is memory, and I think that is the most common issue is people have short-term memory loss. They can remember what they did 40, 50 years ago, because that's in a different type of brain, and particularly Alzheimer's does not affect that long-term part of the brain as much as it does the short-term memory, and so therefore it causes an issue with short-term memory. So there are many types of dementia Alzheimer's, vascular dementia, lewy body, frontal, temporal. There's just all kinds of dementia that are different. They look different, but in general the brain slows down and it starts to decrease the functions of the brain to the point where eventually, the person dies. The brain can't run the body anymore and people simply die. So memory loss is the number one thing we think about. But also there is reasoning issues. Those people with dementia sometimes cannot reason very well and that's why scams are so prevalent among people with dementia is because they don't. They can't reason that I really did not win $20 million from a Nigerian prince or this person. This serviceman living in India really does love me and wants to come and buy things for me and do things. I've just got to pay him to come here. They just don't understand that. That really doesn't make sense, which then also leads to decision-making issues where they are easily influenced by family members and just different things okay. And dementia comes in stages. It starts very minimal, progresses to being very significant in the later stages and, like I said, eventually the brain gets to the point where it just can't run the body anymore and the person passes away.

Speaker 2:

So we as elder law attorneys need to encourage people do your documents now. Pre-planning is always better than late planning. Come in, see us now. And particularly if a person's having no issues, they're like meh, I'm fine, I don't have to worry about it. But it is those people who have been diagnosed with some sort of dementia that are very motivated to come see you. The family is very motivated. And if they go to a normal non-elder law attorney and sadly some elder law attorneys and they're like yeah, I've been diagnosed with dementia, I need to do documents. They're like nope, sorry, you can't do documents, you've been diagnosed. That is absolutely not the standard of care in a person early with a dementia diagnosis can sign documents. Now that brings up a whole lot of legal and ethical considerations.

Speaker 2:

Okay, so what you need to think about here is this person. Where are they today? And what makes a document legal is at the time of signing. Did the people meet those requisites? Okay, and I will tell you that requisite is not what you were taught in law school. It's about can they completely name everything in their estate and completely explain who all their natural heirs are in the relationship between those two? That is a standard, but it's not the standard, particularly for power of attorney. Basically, my standard is can they, you know? Do they know who the person is who should be doing this job? And knowing that and being able to explain this person has been doing it. It makes sense for them to do it and I want them to continue to do it with this legal document.

Speaker 2:

The issue then becomes what about the document? Ok, and I think what we are not taught in law school, and this is what I did on the other podcast. I go into this in depth is you need to look at the risk of the document. How risky is this document that they're doing? And there's a huge difference in the requisite. Appoint that son as the financial power of attorney. They have a daughter who's a doctor and that makes sense for them to be the medical power of attorney. They have a daughter who's a doctor and that makes sense for them to be the medical power of attorney. That doctor's daughter may not live close by and so therefore they're not as intimately involved in their day-to-day so that they would be the financial power of attorney. But they're a doctor, they understand medicine. That makes sense that that child would be the healthcare power of attorney. But they're a doctor, they understand medicine. That makes sense that that child would be the healthcare power of attorney. That is a very low-risk document. That just makes sense.

Speaker 2:

Now same client comes in with the brand new caregiver, who's cute and a little needy and has a house full of kids that she throws into daycare, and comes to sweet little old man and says, hey, why don't you make me your power of attorney with the intent of stealing his money? Okay, Dad comes to you and says, yeah, I want to appoint this brand new caregiver as my financial agent. You're like, hmm, Now the funny part is, it's not that I would not do that, Okay. And you're like, Todd, what the crap? There were times not in that fact pattern where they are bypassing a son who's a CPA, daughter who's a doctor that are intimately involved in their life and she's now talked him into not using them and using her. Yeah, In that fact pattern, I don't think there's anything that would tell me I would do documents appointing the caregiver. But if they came to me without the kids close by and the kids had not talked to dad in years, they truly were not involved. And the caregiver, preferably, is not brand brand new that he just met her, but maybe the daughter of a good friend of his that he's known for years. And there are facts there that, if the person can tell me that.

Speaker 2:

But here's the point To sign a high-risk document, the person actually needs a higher level of capacity. To explain to me why I want this person to be my agent, not a low-risk person, okay, so if you read your ethical rules, with your state bar particularly representing someone with diminished capacity, read the rule, but then also read the comments, and you will see some comments there that talk about the risk of the document. Most of us have never read that don't understand it or like wait, why is that in there that don't understand it or like wait, why is that in there? I've done the research and I can tell you it does depend on the risk of the document. Not just can this person recite the requirements that you learned in law school. And let me just say this real quick not allowing someone with beginning stages of dementia to sign a document requires what Guardianship? We're going to court. The client is losing their rights. They're absolutely in guardianship court. They will lose their rights and probably the judge is going to do exactly what you were going to do on the power of attorney. Name the son, the CPA, as the financial agent and the daughter, the doctor, as a health care agent. The judge is going to do exactly what you were going to do in the documents, why force us all through the court process? And if you do much Medicaid, in a lot of states you cannot do advanced Medicaid planning under a guardianship and therefore you will lose the chance to protect the estate simply because you would not let dad sign documents because he had beginning stages of dementia.

Speaker 2:

Go back to my other podcast. Spend some time there and I do explore that in depth over there. So what are the key legal documents that a person needs? Some of the planning strategies.

Speaker 2:

Number one everyone over the age of 18 needs a power of attorney, but particularly if you've been diagnosed with dementia and we pretty much know, unless this person for some reason drops dead, they are going to spend some time truly incapacitated and cannot handle their affairs they absolutely must have power of attorney and, as I always say, it should be an immediately effective power of attorney. And and as I always say, it should be an immediately effective power of attorney and be very comprehensive you want the agent to be able to do whatever needs to be done when the time comes, both healthcare and financial. You also want to do healthcare directives. You want this person to be able to tell the world here's what I don't want. When that time comes, Okay, If I am truly incapacitated, I cannot answer those questions. Here are the things I want you to do to me. Here's the things I don't want you to do for me, Okay. Then we also need to think about death and dying. They need to avoid probate in almost all states, and sometimes that's a trust, Sometimes it's beneficiary designations, Whatever that person needs for their estate planning documents.

Speaker 2:

Now is the time to do it. Don't wait till later. Convince them. You can think about this for a day or two, a week or two, but you've really got to get back in here. Get these documents signed, because dementia is a progressive disease and you're not got to get back in here. Get these documents signed, because dementia is a progressive disease and you're not going to get better. You're going to get worse, and we've got to get this done before anyone starts causing problems.

Speaker 2:

There are times that we need a guardianship or a conservatorship. I always do that as an absolute last resort, because the client loses their rights. We can't do Medicaid planning. I mean you have a lifetime commitment with the court. I mean there's a lot of things going on there that you want to avoid, and generally by doing the power of attorney, we can avoid a guardianship, and so why not do it? And then also, a lot of families are concerned. Okay, since mom has dementia, there's probably going to be a point where we cannot deal with her anymore at home. She is beyond our capabilities. We need to look at long-term care. That is expensive, and they are wanting some answers on that. And so that's where you can discuss some of the pre-planning things we do with Medicaid Possibly implement an irrevocable trust not always, and honestly, not very often but sometimes the fact pattern does fit where an irrevocable trust is appropriate and you do it.

Speaker 2:

But sometimes people come to us a little bit too late. They're not going into the nursing home right now, but they will go later on, and I will go ahead and go through a crisis Medicaid plan with them, just explaining it to them. It's like, hey, here's what's going to happen, Since we're probably not going to make it five years, Don't panic, it's fine, we can protect things, and here's how we do it. And I just, if they will tell you their financial numbers, you can use their numbers and say, look, here's how we'll do this. Now, if you are an elder law attorney who does a lot of crisis Medicaid, I will warn you and I've learned this the hard way is, as you're going through this, the people sitting at that table watching you go through this presentation are like he's a lawyer. This person down the street's a lawyer. I know some other lawyers, so I'll learn this from him. But I'll go to Joe Blow, the criminal defense attorney, and I'm sure, since Todd knows this, that my lawyer knows this. You've got to tell them look, and once you go through this, they're like oh, OK, that's pretty cool.

Speaker 2:

I always say look, there may be 10 people in this state who can tell you what I just told you. Ok, this is something that I specialize on. They don't teach this in law school. This is something that I do and I will tell you most attorneys don't teach this in law school. This is something that I do and I will tell you most attorneys won't do this. I'm not telling you that you have to come back and see me when you need long-term care, but I'm just saying take a picture of this board and when you go to your attorney and they think they can do this if they don't draw this exact thing on the board. Do this. If they don't draw this exact thing on the board showing you how they can protect a whole lot of money. If they tell you, oh, just get a divorce or deed the house to the kids, whatever you know, any of that crazy non-elder law Medicaid advice, you have to warn them because they literally think all lawyers are alike and if you know this, their family divorce lawyer is going to know this. So you've got to set that expectation and say, look, this is something that I do and very few other attorneys do it. You really do need to come back and see me for this, All right.

Speaker 2:

So some pointers on communicating with patients with dementia. I learned this a long time ago when I was doing physical therapy. I did nursing home and home health, PT, and I was 22 years old working with people with dementia, and I learned just by doing it. But one of the things is you have to speak slowly and clearly. Their senses, their brain, is deteriorating and so therefore, most of their senses, they don't process as quickly and so you don't talk to them like you're talking to a baby, but you do slow down and speak clearly and make sure that they understand what you're saying. All right, you don't speak quickly and just, you know. Just slow down and speak intently, shall we say, and clearly, so that they can understand and periodically say did you get that? Do you understand what I'm saying? Repeat to me in your words what I just said.

Speaker 2:

Use simple language, Okay. Don't use legal jargon. Don't use complicated words. Literally. You have to talk to them like they are about a sixth grade level, 12, 13 years old, Not baby talk and not talking down to them, but just talk to them like they have about a sixth grade education. And this is even people that are highly educated. Their brain is deteriorating to the point at this point where they're probably a teenager and maybe even a young teenager. Okay, I like to use visuals. I like to. You know, I always like to have some other family there so that they can understand what I'm saying and maybe repeat this to the person later on numerous times, since their short-term memory is not very good.

Speaker 2:

Make sure that your meeting room is very isolated, quiet, not distractions going around, and I will tell you, morning meetings are almost always better than evening meetings. Okay, this person may not be a morning person and their first meeting may be in the afternoon. But I would ask the family compared to now, how are they when they first wake up in the morning? And they'll say they're pretty good. Okay, Well, let's schedule the signing meeting in the morning rather than late in the afternoon, because this thing called sundowners is real. It is a real thing that affects people and you want to get people in the morning so that they are fresh, their brain is rested, they're hopefully hydrated, fed medicines, everything is the perfect situation and if a person at that point knows what they're doing, they can sign documents. They may be completely incapacitated that evening.

Speaker 2:

And let me just go on a rabbit trail real quick is you don't need a doctor's order in order to do this or a doctor's opinion to do this. You are an attorney. You have the ability to decide if this person has the legal ability to sign these documents. Okay, when I am grading the CELA exams and this is a point for someone if you are about to take the exam, I do grade very frequently and if, on a dementia question, they're like oh, I absolutely make sure that a doctor approves this, you're going to lose points you probably will not pass that question, to be honest, because that is not the standard. The standard is when the person signs documents. Now, if the doctor is sitting there with you, which never happens, but If, by chance, the doctor is sitting there with you, sure you can say what is your opinion of this. Does this person know what's going on? But when that person goes to the doctor, maybe in the afternoon, and the doctor's like, oh, they don't know what's going on. Number one, they were not there when the person signed the documents signing meetings in the morning, that person could be in a completely different mental state than when they went to see the physician.

Speaker 2:

All right, some takeaways Always encourage early planning. When you do public events, tell people, look, come see me. Now You're at this event, You're up and going, it's time to come see me and make sure that they understand. Even though you've been diagnosed with dementia and even if someone, some other attorney, told you that you can't sign documents, come see me. Okay, let's talk about it. They may be right. Okay, they may have advanced dementia to the, so that you can understand, because this is something that you are going to see a lot and I encourage you to be really good at this. Okay, and understand what's going on and understand that just because someone has dementia does not mean that they cannot sign documents. All right, I hope this helped.

Speaker 2:

If you think I'm completely off my rocker, email me Todd at TheUtterLawCoachcom.

Speaker 2:

I would love to discuss this with you and show you the exact ethical guidelines that I am referring to. But hopefully this frees you up to say you know, I just told someone no, and I really I think they could have, but just, you know, that perception of they have a diagnosis of dementia, so therefore they can't sign documents, is wrong. Get them back in, talk to them again and say hey, I was wrong, I think we can do this and that will save you a ton of time and money and prevent them from having their rights taken away with a guardianship. All right, I would love to be your coach. Okay, so if you are interested in advancing your knowledge in elder law, Medicaid, VA, estate planning for older people, I would love to work with you. Go to my website, Todd, or. The elderlawcoachcom is the website you can email me at Todd at the elderlawcoachcom. Also include Tricia T-R-I-S-H-A in those emails, because I miss some emails every now and then and she's pretty good about catching them. So thank you for listening and I will see you next time.

Speaker 1:

Thank you for joining this episode of the Elder Law Coach podcast. For those eager to take their elder law practice to new heights and are interested in Todd's acclaimed coaching program, visit wwwtheelderlawcoachcom. With Todd Whatley by your side, the journey to becoming an elder law authority has never been more achievable. Until next time, keep learning, keep growing and stay passionate about elder law.