After the Diagnosis: Essential Legal Documents for persons with dementia Frances M. Pantaleo BLEAKLEY PLATT & Schmidt, LLP One North Lexington Avenue White Plains, NY 10601 Tel: (914) 287-6118 fpantaleo@bpslaw.com

Diagnosis of Alzheimer’s disease is a wake up call Life Time Decision Making: Do you have the tools you will need to: Manage assets as the disease progresses? Make essential health care decisions? Estate Planning: Do you need to revise your estate planning documents to assure an orderly transfer of assets? Are there steps you can take to preserve your assets for your loved ones?

CAPACITY Diagnosis of memory loss, dementia or Alzheimer’s disease does not automatically equal loss of capacity. Does the individual understand the document? Is the individual acting freely and without undue influence? Ability to sign name and understand documents will decline over time.

Time is of the Essence

ADVANCE DIRECTIVES Every estate plan should include discussion and preparation of these essential advance directives: Power of Attorney Health Care Proxy Living Will Medical privacy (HIPAA) release

POWER OF ATTORNEY Essential tool for financial management Names an agent to manage assets, carry out business, sell real estate. Significant changes in the New York statutory form enacted in 2009 and 2010.

Durable v. Non-Durable Durable POA survives incapacity of principal Non-durable Power of Attorney is automatically revoked upon principal’s incapacity ALl Powers of Attorney are durable (and survive incapacity of the principal) unless the POA provides otherwise “Springing” Power of Attorney: Takes effect at a future time or upon an event defined by the principal, including but not limited to principal’s incapacity -NOT RECOMMENDED

AGENTS Co-Agents, if appointed, must act JOINTLY, unless paragraph (b) is initialed to state they shall act SEPARATELY. WARNING: MOST BANKS REFUSE TO ACCEPT A POA WHICH REQUIRES JOINT ACTION (2 SIGNATURES)!! Successor Agents: Designated in Paragraph (C)

MODIFICATIONS Principal may expand or restrict the standard provisions in Modifications Section of the POA. Recommended modifications include the ability to create and fund a trust, open and close bank accounts, apply for government benefits.

GIFTING BY AGENTS Don’t try to do this yourself. Get a lawyer! Standard POA limits gifts to annual total of $500 Principal must execute STATUTORY GIFTS RIDER (SGR) to permit additional gifting by agent. Essential to permit tax and Medicaid planning. Don’t try to do this yourself. Get a lawyer!

HEALTH CARE ADVANCE DIRECTIVES HEALTH CARE PROXY LIVING WILL DO NOT RESUSCITATE (DNR) HIPAA RELEASE MOLST

HEALTH CARE PROXY Appoints agent to make all medical decisions, not just end of life care. Agent may only act if the principal is determined to be unable to make medical decisions. two witnesses Competency is presumed. One agent at a time—no joint agents.

ARTIFICIAL HYDRATION AND NUTRITION Agent may not make decisions about artificial nutrition and hydration (tube feeding) unless the principal’s wishes are known. Consider adding language to the form such as the following: “My agent knows my wishes about artificial nutrition and hydration and is authorized to make decisions about such treatment. “

LIVING WILL No NY Statutory Form. Written declaration regarding wishes for end of life care and termination of life support. “Permission” Should specifically indicate agent’s wishes regarding cardiac resuscitation, mechanical respiration, antibiotics, pain relief, artificial nutrition and hydration. Controversy about whether needed if agent signs a health care proxy.

HIPAA RELEASE Health Insurance Portability and Accountability Act prohibits release of confidential medical information without a written authorization by the patient. Information about privacy practices must be disclosed to patient by medical providers Blanket authorization form may be useful to care providers in dealing with medical professionals and insurance companies.

Do NOT Resuscitate Orders Legal presumption favors resuscitation unless DNR in place. Capacity to consent to DNR is presumed unless doctors agree patient lacks capacity. Health care agent, guardians, spouse, child, parent, sibling or close friend may consent to DNR if patient incapacitated. Hospital orders reviewed every 7 days. Orders in residential care facilities reviewed at least every 60 days.

Non-Hospital DNR Orders Forms and identity bracelets available from DOH. Form must be reviewed by Dr. every 90 days but does not expire. Must be presented to emergency medical personnel to be honored. Emergency workers may refuse to honor if they have a good faith belief that consent to the order has been revoked or if family members or others on the scene object, physical confrontation is deemed likely or for “other significant and exceptional medical circumstances.”

MOLST—Medical Orders for Life Sustaining Treatment Bright Pink double sided 4 page form Completed by doctor upon consultation with client about wishes for end of life care. Form can be transferred with the patient from care setting to care setting. Appropriate for clients with terminal illnesses or residing in long term care facilities who wish to avoid CPR, tube- feeding etc. May be used instead of Non-Hospital DNR.

TALK ABOUT IT!!! Discuss your wishes about end of life treatment with your loved ones and family members. Copies of documents should be provided to family members, physicians, caregivers. Maintain in visible place in the home.

ESTATE PLANNING Who will inherit your assets when you die?

Estate planning documents LAST WILL AND TESTAMENT TRUSTS—REVOCABLE AND IRREVOCABLE BENEFICIARY DESIGNATIONS TOD or POD LIFE ESTATE DEEDS ASSET TITLE: JOINT TENANT vs JOINT TENANT WITH RIGHTS OF SURVIVORSHIP vs TENANTS BY THE ENTIRETY

THANK YOU!