We recently sat down with attorney Brad Sauer, to discuss the execution of end-of-life legal documents for those with Alzheimer’s disease. Unfortunately, many caregivers do not understand the importance of living wills and powers of attorney until it’s too late. Because of the nature of the disease, executing these documents can become an ethical issue if they are not done in a timely manner.
1. Living Wills and Health Care Powers of Attorney
As an attorney for one of the branches of the military, my responsibilities include providing legal assistance to active-duty service members and military retirees. For military retirees, I am often asked to prepare:
- A living will (also called an advance medical directive)
- A health care power of attorney.
The former is a document that permits health care professionals to cease artificial life-sustaining measures when an individual has a terminal condition, permitting the individual to pass naturally.
The latter gives another person (often a spouse or an adult child) the authority to make health care decisions on the individual’s behalf; which takes effect at a lesser stage of incapacitation, such as temporary unconsciousness or diminished cognitive abilities.
Both of these documents are important for a family to have, especially for families with loved ones suffering from Alzheimer’s. These families will often be challenged with ethical issues if the documents are not prepared in a timely manner.
2. The Effect of Alzheimer’s on Legal Documents
To be clear, Alzheimer’s disease greatly effects living wills and a health care power of attorney, as:
- Only an Alzheimer’s patient can sign the document pertaining to him or her
- Neither an attorney nor a notary can ethically prepare or notarize a living will or health care power of attorney for a patient that does not understand the nature of the documents at issue
This creates a challenging situation for the patient and his or her family who needs the documents. I am always saddened when a spouse or adult child comes to my office asking for assistance with a loved one with late stage Alzheimer’s. Sometimes the Alzheimer’s patient is present, but it is clear that he or she does not understand why they are in my office, let alone understand a complicated legal document. Sometimes the Alzheimer’s patient doesn’t even come. I am forced to answer that, unfortunately, it is too late.
3. Determining Capacity to Execute Legal Documents
Most attorneys and notaries are not medical professionals, so when determining the capacity to execute a legal document, they err on the side of caution. In fact, some will not even prepare or execute documents for an individual they know has an Alzheimer’s diagnosis.
I feel this approach is extreme, and will personally prepare and execute documents for a person who can explain the basic purpose of the document to me 15 minutes after I explain it to him or her. But, in my experience, most middle to late-stage Alzheimer’s patients are not able to do so.
An Alzheimer’s diagnosis for a loved one is overwhelming. As you prepare them for the future, be sure to talk to them early about getting a living will and a health care power of attorney. They may resist at first, but don’t give up; when your loved one needs them, you will both be glad they have one.
About the Author
Brad Sauer graduated from George Washington Law School in 2010, and is currently practicing law on active duty status for the military. The views and opinions expressed in this post do not imply endorsement by the United States military.
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