A middle-aged couple recently came to me with some concerns about the wife's parents. Her parents are in good health for their age, but they aren't getting any younger. Her parents had a basic will in place, but that was it. They had not planned for a situation where one or both of them might no longer have the capacity to make certain decisions on their own, despite having years left on their lives.
What does lack of capacity mean?
A lack of (or reduced) capacity can be found when someone demonstrates a diminished memory or ability to make everyday decisions on their own. It's not something that has a firm definition, and reasonable minds often disagree on when someone suffers from it.
Dementia is a term often used to describe lack of capacity. Dementia is not itself a disease, but several diseases can lead to it, the most common of which is Alzheimer's. We should all familiarize ourselves with the warnings signs of Alzheimer's here. Alzheimer's is a disease that affects the brain. Unfortunately, it's progressive (meaning it gets worse over time), irreversible, and eventually fatal.
More information about Alzheimer's and dementia can be found here and here.
Planning ahead for aging parents
Advance Health Care Directive (AHCD). An AHCD allows someone you appoint (called an agent) to make certain health-care related decisions for you if you lose the capacity to make those decisions yourself. For example, whether to get in-home care or move you to a nursing home.
Power of Attorney for Business and Financial Affairs (POA). A POA allows someone you appoint (called an attorney-in-fact) to make certain financial decisions for you if you lose the capacity to make those decisions yourself. For example, to get access to your bank accounts to pay your mortgage and to monitor and manage your investments.
For both of these important tools, you can set guidelines or state preferences for your agent or attorney-in-fact to follow. For example, to have certain funeral arrangements or to not engage in certain types of investments.
The lawyer's role
If I were to advise you on estate planning matters -- regardless of your age, sex, or frailty -- I would have an obligation to do my own assessment of your mental faculties. Do you appear to understand the concepts I'm talking about? Do you appear to understand what the legal effect will be of the documents you're considering signing? Do you actually want to be here, or are you here only because someone else urged you to be? I'm not qualified to diagnose anyone with a medical disease or to say whether someone has dementia, but I do have an obligation to not draft estate planning documents for a client who, in my judgment, can't independently make his or her own estate planning decisions.
The lesson here is that estate planning isn't just about preparing for your eventual death. Good planning could be greatly needed many years before that.