"Dementia is a syndrome that causes the deterioration of an individual’s cognitive function. As people of the baby boomer generation age (a term used to describe those who were born between 1946 and 1964 ), dementia diagnoses are increasing. This means that the number of people affected by dementia keeps going up." 

Losing a loved one is challenging, and dealing with their belongings can be confusing. One area of confusion surrounds gaining access to safe deposit boxes before being appointed as a personal representative.

It is alarming that the number of dementia cases being diagnosed among individuals in their 50s is also increasing.

Although you may never have to deal with the challenges that a diagnosis of dementia can bring, it is still vital that you complete your estate plan early, while you have the mental capacity legally required to make estate planning decisions.

To have a say in your medical care and the financial decisions made on your behalf if you become mentally incapacitated, it’s vital to work with aSpecial Needs Attorney.

Special Needs Planning Documents Checklist:

These special needs lawyers for adults can assist you in preparing important legal documents such as: 

1. Designation of Health Care Surrogate: A Designation of Health Care Surrogate names the individual(s) you would like to make medical decisions for you once you become incapacitated. It provides said individual(s) with HIPPA authorization.
2. Living Will: A Living Will describes what type of medical care you would like to receive, and under what circumstances you would like medical care to be stopped when you are at the end stage of life.
3. Durable Power of Attorney: ADurable Power of Attorneynames an individual or individuals to serve as attorney-in-fact for you, allowing the said individual to manage those matters affecting your property and possessions. Essentially, your attorney-in-fact can act on your behalf concerning various transactions.
4. Declaration of Preneed Guardian: The Declaration of Preneed Guardian, is a legal document that allows you to choose someone to care for your personal and financial affairs should you lose mental capacity, providing clarity and protection during a vulnerable time.

What happens when someone close to you gets upset that they are not named in your healthcare documents or your power of attorney document?

That person may file a petition with the court asking to be in charge of your financial affairs and healthcare decisions. In this instance,

1. Having a Declaration of Preneed Guardian in place would be helpful.
2. A Declaration Naming Preneed Guardian nominates an individual to act on your behalf in case you need a court-appointed guardian.

Although it is not binding on the court, by suggesting your preference for a guardian in this manner, your family may avoid some of the administrative burden associated with a court proceeding to determine a guardian.

In preparing to have the above documents created, there are some important things to consider:

1. Where would you like to live and receive treatment? Consider your preferences for living arrangements and treatment settings. Would you prefer to receive care in your home, or would you like to be moved to a specific assisted living facility? These decisions will impact your care plan and should be discussed with your attorney to ensure your wishes are documented and respected. 
2. Who do you trust to make financial and medical decisions for you? Identify trusted individuals who can make important financial and medical decisions on your behalf if you fail to do so. This could include naming a guardian or a power of attorney. It's important to have these roles clearly defined to ensure your best interests are upheld. 
3. How will you pay for your care? Evaluate your financial resources and plan how to fund your care. This may include setting up a special needs trust, applying for government benefits, and establishing a disability income plan. Proper financial planning can help ensure that there are sufficient funds for long-term care without jeopardizing your eligibility for government benefits
4. How much does it cost to hire a Special Needs Planning Attorney? The cost of hiring a special needs planning attorney can vary. Some attorneys may charge a flat fee for creating estate plans and special needs trusts, while others might bill by the hour for additional services. Many attorneys assist in preparing essential legal documents and offer free consultations, so it’s a good idea to meet with a few different attorneys to discuss your needs and understand their fee structures before making a decision

By addressing these considerations, you can better prepare for a consultation with a special needs planning attorney and ensure that your legal documents reflect your wishes and provide for your future needs.

What happens if you fail to create these legal documents while being medically capable?

To ensure you can create legal documents such as a Designation of Health Care Surrogate, Living Will, Durable Power of Attorney, and Declaration of Preneed Guardian, it’s crucial to have the necessary mental capacity. After a diagnosis of dementia, it may be impossible for you to execute these documents or even amend existing ones.

Failure to create these legal documents in establishing a single decision-maker for your medical care, the state laws will dictate who can make decisions on your behalf. These state laws vary from state to state although the order of preference for Florida and most of the other states is the same ie., 

1. Living Spouse,
2. Adult Children,
3. Parents,
4. Siblings, and
5. Other Close Relatives

In the absence of an advance directive, surrogate decisions become necessary. Surrogates must base decisions on principles of "substituted judgment" (what the patient would have decided) or "best interest" (what the surrogate deems best for the patient). Legal documents play a crucial role in ensuring the wishes of individuals with dementia are upheld as the disease progresses. 

If someone declares you incompetent and you haven’t executed a Designation of Health Care Surrogate or Durable Power of Attorney, they would need to pursue legal guardianship over you to make any medical or financial decisions for you. It’s important to have these legal documents in place to avoid the need for guardianship. 

Conclusion:

Planning for the special needs of your elderly in Florida can be daunting and complex. But that does not mean it is impossible. With proper guidance and a roadmap, one can easily navigate the legal waters, knowing wishes are honored and taken care of. Dementia can cause your loved ones partial or permanent memory loss, but you as their caretaker must not forget the medical and financial assistance they might need in their tough times. It's time to Plan for the future of your elderly with special needs. 

Useful Resources:

1. Living Wills and End-of-Life Decisions
2. Durable Power of Attorneys: 5 Reasons Why You Need It
3. Planning Estate for Young Families: 5 Essential steps to protect them. 
4. Comprehensive Estate Planning Checklist For 2024