Stack of paperwork organized in binder clips


Gregory, L. Williams, Jr., Esq., Partner. Feb. 21, 2022

A lengthy study by the National Institutes of Health (NIH) estimated that a dementia-free male aged 65 had a 14.3 percent probability of developing dementia at some point in his life. For 65-year-old dementia-free females, the comparable percentage was 21.7. The average age for the onset of dementia is 83.7 years, and Alzheimer’s generally accounts for 60 to 80 percent of all dementia cases.

While that may seem a long way off, dementia nonetheless remains a vast factor in planning for your future. Who will manage your affairs if you can’t? Who will make your health care decisions for you when dementia leaves you unable to do so? Who will care for you daily?

Fortunately, there are legal instruments that can relieve your loved ones of making decisions regarding your life and affairs that only you should make, even if dementia has set in. Establishing these legal instruments is part of comprehensive estate planning, even for the young and healthy.

If you’re located in Columbus or throughout central Ohio, contact me to start the estate planning process or to review what you already have in place to make sure every possibility, including cognitive impairment, is factored in.

Legal Capacity, Cognitive Impairment and Guardianship

Generally, you are of legal capacity to create estate planning documents like wills, trusts, and powers of attorney when you turn 18. You’ve probably also heard the term “of sound mind.” This known phrase means that you also have the mental and emotional capacity to make judgments regarding yourself, your well-being, and your estate.

In contrast, the Ohio Revised Code defines incapacity as the inability of a person to manage their personal and business affairs due to an impairment and the resulting inability to receive and evaluate information, even with assistive technology.

If a person reaches this stage of incapacity, a family member, loved one, or friend can go to the probate court to have a guardian appointed. The guardian will then manage the person’s life and affairs. The appointment of a guardian unfamiliar with the infirm person is the last thing they would want.

To avoid having a court decide on a guardian is a significant aspect of a well-thought-out estate plan. There are legal instruments available for you to name not only a guardian but also someone to manage your financial and health care decisions when you can’t. Often, that can be the same person, different individuals, or even institutions like banks for financial affairs.

The prime consideration is that you execute your estate planning needs while you still have the legal capacity to do so, which means you have yet to reach the definition of incapacity given above. After dementia sets in and you become incapacitated, courts are not likely to honor any new agreements or documents.

Planning for All Possibilities

Not everyone will suffer dementia, but many will, just as COVID-19 affected many but not all. In both examples, it’s hard to foresee the event on the horizon. Reversals and challenges have a way of appearing out of the blue. That’s why it’s crucial in estate planning to consider every eventuality, including:

Caring for Your Family and Loved Ones: The basic building block of any estate plan is a will or living trust. Both accomplish the same in designating your beneficiaries and assigning assets to them when you’re gone. Beyond that, wills have to go through probate court proceedings, which can be long and costly, and living trusts do not. But most importantly, planning for the possibility of incapacity resulting from anything, including dementia, a living trust also assigns your assets to the successor trustee you name, who becomes legally responsible for your financial affairs once you become incapacitated.

Creating a Power of Attorney: If you have only a will in place, you will need to grant someone -- who like a successor trustee can be a family member, close friend, or associate whom you trust completely -- a durable power of attorney, which will grant that person power over your financial affairs once you’re incapacitated. Until you are incapacitated, you retain complete control over every aspect of your life and affairs.

Executing a Living Will and Health Care Power of Attorney: Two documents – the living will and health care power of attorney – will enable you to voice your medical treatment choices when incapacitated and unable to do so. The living will is used to express those choices, and the power of attorney enables someone you name to convey those choices to your attending physician. Together, these two documents are referred to as a health care advance directive.

Naming a Guardian: Only a probate court can appoint a guardian to care for someone incapacitated, but you can – in advance – name the person you wish to be your guardian. This can be done in a will, a durable power of attorney, or even the health care power of attorney. The probate court will generally honor your wishes unless your nominee is deemed unsuitable for some reason or declines to act in that capacity.

The Importance of Working with an Estate Planning Attorney

All these documents must be carefully worded with clear instructions to avoid challenges or confusion when it comes time to take effect. There are also witnessing requirements, filing, and other legal hurdles that need to be honored. In short, comprehensive and ironclad estate planning should always be done with the counsel and guidance of an experienced estate planning attorney.

You should also periodically review these documents. Factors in your life are subject to change, and you may need to alter details in your estate plan.

If you are starting on estate planning or need to make sure what you have possesses all the possibilities that life entails, contact me. I have helped countless other individuals and families just like you and will be happy to help you. I proudly serve clients through Columbus and Central Ohio.