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NS-Does Dementia Itself Preclude One From Making Decisions?
Jan L. Warner & Jan Collins

Question: My mother died early last year. After living alone since then, my father has been diagnosed with dementia. He is 84. Dad refused to do anything about financial or health planning, but now says he is ready. I have one sister who lives on the other side of the country, and she fully supports the decision for him to get his documents in order. However, I have read and have been told by my lawyer that after being diagnosed with dementia, individuals are not supposed to sign estate and other documents. What can and can't be done?

Answer: First of all, we believe you received inaccurate advice. The first order of business is to determine the extent to which an individual has the legal capability to direct his or her own affairs -- including whether or not he can choose who will act for him, the scope of the authority to be delegated and the circumstances under which it may be exercised.

Unfortunately, this determination is often complicated by confusion over terminology and the proper standard to be used; the fact that individuals may have varying degrees of capacity at different times; and questions about who actually makes the determination of capacity.

"Capacity" to make a decision more accurately describes the notion of an individual's capability to do so. A determination of an individual's capacity includes an examination of his or her current mental status, judgment and short-term memory deficits. Decisional capacity is a prerequisite for providing legally adequate and morally sufficient informed consent or refusal. Decision-making capacity requires, to greater or lesser degree: (1) possession of a set of values and goals; (2) the ability to communicate and to understand information; and (3) the ability to reason and to deliberate about one's choices.

An individual may have the capacity to make some decisions, but not others. For example, your father may be capable of choosing between relatively harmless alternatives, yet lack the capacity to evaluate and choose alternatives in a life-threatening circumstance.

Additionally, your father need not be equally aware at all times in order to possess the legal capacity to act. Individuals with fluctuating ability who are intermittently confused may, in their more lucid moments, be perfectly capable of legally acting on their own behalf. A "window of lucidity" may exist in a person who exhibits dementia or other mental impairments. A common example is individuals who experience "sundowning" (enhanced confusion in the evening), but may be quite lucid at other times of the day.

Thus, an individual with compromised short-term memory may nonetheless be able to judge the propriety of a suggested intervention despite his or her memory deficit. Alternatively, an individual may have deficits in understanding or reasoning of such severity that the average person would not want that patient to bear responsibility for the choice he or she proposes to make.

In determining whether an individual has adequate capacity to make decisions with regard to his personal care or property, the following factors are among those that should be considered: a) the ability to state the reasoning behind a decision; b) the variability of the person's state of mind; c) ability to appreciate the consequences of decisions; d) the irreversibility of any decision the person makes;(e) the substantive fairness of any decision he or she makes; and f) the consistency of the current decision with prior decisions.

While formal mental status testing can help determine whether a person should be considered legally incapacitated, these tests are not foolproof and only provide a "snapshot" of the individual's capacity at a given point in time. Although a score on a standard examination -- good or bad -- should not be used to dictate a general conclusion about overall capacity, such a "snapshot" can be an important indicator as to whether the individual has the requisite capacity to engage in a particular act at a particular time.

In our opinion, if your father knows he wants you to handle his affairs and knows that you will take care of him and not violate your fiduciary duty to him by self-serving acts, so long as his physician is on board, dementia alone should not be a bar to your father engaging in appropriate planning.

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Planning Your Future with 20-20 Vision™

Today, more than 36 million Americans are age 65 or over. There are more than 22 million family-member caregivers. Then there are the Baby Boomers. All are grappling with the major decisions that accompany the latter stages of life. This book is for them. Written by two experts with decades of experience between them, it is a comprehensive guide that instructs readers about how to create a plan to deal with all aspects of aging, helps maximize options and ensure wishes are carried out.

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