Diminished Mental Capacity: How it affects Your Patient, Resident, Client or Loved One on the Elder

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Aug 15, 2019

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Attorneys and serving seniors often stress how important it is to begin senior estate planning or traditional estate planning with the execution of powers of attorney for both property and healthcare matters.
However, with diminished mental capacity, sometimes it is difficult and some-times impossible to have such documents executed by a patient, resident, loved one or client due to the fact that they no longer possess the required cognitive capability to legally and ethically sign documents.
Sometimes circumstances are very clear-cut as to whether mental capacity exists, but sometimes the facts surrounding the behavior of a loved one are not so clear or not so well understood. In situations where it is not clear you may need to seek consultation from a medical professional or mental health expert. If a formal assessment is desired, the attorney usually attempts to obtain the consent and cooperation of the client, if that is possible.
Who does the lawyer look to as a referral for consultation on matters of diminished mental capacity if the attending physician will not undertake the assessment, you may look to other geriatric assessment professionals that can often take a multidisciplinary approach to determining diminished mental capacity.
The Takeaway: Obtain and sign powers of attorney for healthcare and powers of attorney for property, as well as any other estate planning documents that you need for either senior estate planning or traditional estate planning, as soon as possible. The problem that arises: If you do not have the requisite mental capacity to legally and ethically execute documents, it may be necessary to engage in a protective action such as an expensive guardianship proceeding in the State of Illinois In our office we recommend people execute powers of attorney when they are 18 years of age! Dont fall into the trap of helplessness that diminished mental capacity can create, and possibly be permanently locked out of your constitutional right to self - determination, regarding your own health needs, property matters, estate plan, and other related matters.
Editors Note: Article Submitted by: Anthony B. Ferraro BS, MSTax, CPA, JD, an Elder Law, Estate & Trust and Asset Protection Lawyer, A Lawyer for Aging Boomers and seniors. Partner of Di Monte & Lizak, LLC. 847698-9600 email: Anthony Ferraro - aferraro@dimontelaw.com; www.abferrarolaw.com

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