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If you’re like most of us at WilliamsMcCarthy LLP, you will be spending more time with relatives this holiday season. This time together with family is a great opportunity to talk about family health history. Understanding health problems that may run in your family provides you and your loved ones with the invaluable opportunity to seek preventative care, proactively monitor potential signs of a disease that runs in the family, and consider legal planning for those who have already been diagnosed with a medical condition or disease. Often an afterthought, legal planning deserves significant consideration immediately following a diagnosis.
Many medical conditions, including Alzheimer’s disease, have been shown to be passed down through families. According to the Alzheimer’s Association, those who have a parent, brother or sister with Alzheimer’s are more likely to develop the disease. The risk also increases if more than one family member has the illness.
Today, more than 5 million Americans are living with Alzheimer’s and could rise as high as 16 million people by 2050. As a result, it is important for all of us – and especially for those with a family history – to know the early signs and symptoms of Alzheimer’s.
The topic of legal planning can be a difficult or potentially uncomfortable conversation among family members. However, with proper proactive planning, adequate provisions can be put in place to care for someone who has the disease, and to provide estate administration after passing, in a dignified and respectful manner. As with many medical conditions, the critical factor with Alzheimer’s disease is time: the effectiveness of legal documents depends on the legal capacity to sign estate planning documents.
In Illinois, the general required capacity to execute estate planning documents is that an individual must have adequate mental capacity to identify their family and their assets, to know they are signing a legal document, and to identify a plan for disposition of their assets after death. Those afflicted with Alzheimer’s often go in and out of lucidity, so simply having the disease is not necessarily enough to disqualify someone from planning. However, the less frequent the lucidity, the more difficulty a court may have in finding that the requisite capacity was present. Whether one has the necessary capacity is a determination often not made until after someone with Alzheimer’s has passed away, and in many cases, a court’s determination of whether capacity exists depends on the surrounding circumstances at the time the documents were executed. As a result, legal planning after an Alzheimer’s diagnosis should not be delayed.
Once an individual lacks the capacity to care for their own affairs, a guardianship proceeding may be filed in the court system. In a guardianship proceeding, a court determines whether a person is legally incompetent to manage their own affairs. If there is a finding of incompetence, the court will appoint a guardian, typically either a family member or close friend, to oversee affairs, including financial management and, potentially, placement in a residential care facility.
The good news is that with prompt attention, relatively simple planning can be done to avoid the necessity of a guardianship proceeding. Powers of Attorney, which are often complementary documents to a will or trust, are of particular importance in the estate planning process for a person afflicted with Alzheimer’s. In Illinois, there are two types of Powers of Attorney; one for property and another for health care. Within each Power of Attorney document, a person names both a Power of Attorney – someone to act in their stead and in their shoes – and successors to continue in an event of disability or the unavailability of the original designee. Powers of Attorney can be made effective immediately, which is of particular usefulness to those suffering from the symptoms of Alzheimer’s. If properly drafted, a set of Powers of Attorney can duplicate the powers of a guardianship, without the necessity of public court proceedings.
No one plans on being diagnosed with and suffering from Alzheimer’s disease, but knowing your family history of the disease can help proactively identify and prepare for legal planning if a diagnosis occurs. Legal planning can help protect the wishes and dignity of those suffering in the latter stages of the disease, and deserves consideration in the immediate aftermath of an early diagnosis.
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Daniel A. Huntley is an associate in the transactional group, concentrating his practice in corporate law, real estate law, estate and trust law and agribusiness law. Originally from Rochelle, Illinois, his clients range from multi-national corporations to local family-owned businesses to individuals.
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