Epi 50: Navigating Dementia: Legal Rights and Client Capacity

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.

Transcript

Introduction to Dementia in Elder Law

Speaker 1 0:19

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 0:39

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 1:19

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

Understanding Dementia and Its Stages

Speaker 2 3:18

.

Speaker 2 3:18

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 3:37

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 5:36

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

Legal and Ethical Considerations

Speaker 2 6:33

.

Speaker 2 6:33

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 7:31

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 8:51

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 10:20

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 12:08

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

Key Legal Documents and Planning Strategies

Speaker 2 12:18

needs ? Some of the planning strategies .

Speaker 2 12:20

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 13:30

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 13:52

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 14:59

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 16:08

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 17:18

So some pointers on communicating with patients with dementia

Communicating Effectively with Dementia Patients

Speaker 2 17:23

. 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 18:18

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 19:11

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 20:10

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 21:35

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 .

Final Takeaways and Call to Action

Speaker 2 22:52

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

Speaker 2 22:57

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 24:12

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 .