More than 68 percent of New Jersey residents know someone who has or had dementia or Alzheimer’s disease, according to a survey conducted by Fairleigh Dickinson’s PublicMind. Dementia is a group of symptoms that can include impairments to one’s ability to think and communicate, as well as memory loss. Alzheimer’s disease is the most common cause of dementia. It is a progressive, degenerative disorder that impairs thinking, behavior and memory. Due to the degenerative nature of the disease, those with Alzheimer’s are encouraged to obtain an advance directive, a legal document that can direct medical and financial wishes, even after the point when individuals lose the ability to do so themselves.
What are Advance Directives?
Advance directives are written instructions that allow an individual to plan and communicate their end-of-life decisions in the event that he or she loses the capacity to do so. In the state of New Jersey, advance directives can include a proxy directive (a durable power of attorney for health care) and an instructive directive (a living will).
Durable Power of Attorney
A power of attorney allows the person with Alzheimer’s disease, “the principal,” to designate a trusted individual, “the agent,” (usually a family member, caregiver, domestic partner, friend) to make financial and other decisions when the affected individual is no longer able to do so.
With respect to individuals with Alzheimer’s disease, these documents should be written to be “durable,” meaning that they can be implemented even after the individual becomes incapacitated and can no longer make these decisions. To ensure that these documents remain valid in these instances, an experienced New Jersey estate planning attorney should be consulted when drafting these documents.
A power of attorney does not give the agent the power to override the decisions of the principal. The individual with Alzheimer’s maintains legal rights over these decisions, as long as he or she has legal capacity.
The principal may grant the agent authorization to make decisions about income and assets. The agent is responsible for maintaining all finances and assets according to the instructions, and in the best interests, of the principal.
Power of Attorney for Health Care
A power of attorney for health care allows an individual with Alzheimer’s to designate an agent to make health care decisions for them when they are no longer able to do so.
These health care decisions can include doctors and other physicians, types of treatments, and care facilities.
For someone who is in the advanced stages of Alzheimer’s disease, the health care agent may make end-of-life decisions, such as providing “do not resuscitate” (DNR) instructions to the physicians.
It is important that the principal explain his or her wishes in detail with the designated health care agent early on to make sure that the instructions are understood and will be implemented on behalf of the principal.
Living Will
Under New Jersey law, an individual can have a living will without a power of attorney for health care. A living will is a written legal document that expresses how a physically or mentally incapacitated individual wishes to be treated in certain situations regarding their health care.
Among the medical wishes that are addressed in a living will, an individual with Alzheimer’s may specify his or her wishes regarding end of life medical care. The contents of the living will is referenced and relied upon once the individual is incapacitated and is unable to communicate his or her wishes regarding medical treatment.
Circumstances in which an individual can have life-sustaining treatment withdrawn or withheld are:
- The individual is permanently unconscious.
- The individual is in terminal condition.
- The life-sustaining treatment would likely only prolong an imminent death.
- The life-sustaining treatment would be ineffective.
- The individual has a serious irreversible condition and the life-sustaining treatment would do more harm than good to the individual.
A living will should also include an individual’s statement about their beliefs or general preferences for care and treatments for medical situations that are not specified in the living will. That way, doctors and family members can make decisions in line with the individual’s wishes.
A living will may also prevent conflicts among loved ones, doctors or other health care providers that can occur when a patient’s treatment preferences are not known.
When Should Advance Directives be Made?
Generally, advance directives should be completed as soon as possible after a diagnosis of dementia. However, each advance directive demands a different degree of legal capacity, the level of judgment and decision-making ability needed to sign official documents or to make legal or financial decisions.
The level of capacity required for an individual to sign a health care proxy is low. An individual only needs to know who the health care proxy is and that they would like them to make medical decisions for them if needed. Unless there is evidence to the contrary, the law presumes a health care proxy is valid.
For a power of attorney, the law requires a higher degree of capacity. To execute a valid power of attorney, an individual must know who the designated power of attorney is and have a thorough understanding of what he or she is signing and what the implications of that document are. Analyzing whether or not an individual has the capacity to sign an advance directive is not an easy task and must be evaluated by an experienced elder law attorney.
What If the Individual’s Alzheimer’s Disease Has Progressed Beyond Legal Capacity?
If an individual’s Alzheimer’s disease has progressed to the point where they do not have the capacity to execute an advance directive, then a guardianship may be required for that individual. An application is brought before the court asking to appoint a guardian to an incapacitated individual and their property based on incapacity certification of two independent physicians who have either examined or treated the patient within the last 30 days.
Once a petition is filed with the Court, a date will be set for the hearing. Furthermore, all parties of interest will be notified regarding the date of the hearing, and the parties may object to an appointed guardian. A court appointed attorney is appointed to represent the individual, review finances and medical records. Counsel will present evidence and provide a recommendation as to whether or not they feel a guardian is necessary. Finally, the court will determine if a guardian shall be appointed and whether the person asking to become a guardian is the right individual to act in such a capacity.
After an individual has been appointed guardian, the court continues to monitor the status of the ward. Additionally, the Guardian must maintain records and periodically submit reports to the court. While advance directives are not able to be acquired after a person is diagnosed with dementia, it is better to have them in place beforehand to avoid a potential guardianship proceeding.
The experienced attorneys at the Law Offices of Hunziker, Jones, & Sweeney help seniors and their families handle all aspects of elder law, including end-of-life planning, asset preservation, Medicaid planning, and trusts and estates. These issues can range from simple to complex, and can often be emotional. A guardianship is one tool the firm uses to help protect the elderly or disabled. The attorneys at the firm can be trusted by their clients to handle each legal matter with diligence and compassion. For more information, call the firm at (973) 256-0456.
