It’s wise for anyone older than 55 to have an advance health care directive in place, should they become incapacitated, so a trusted agent can fulfill the patient’s wishes in a dignified manner. But what do you do if a loved one who may be incapacitated didn’t have the chance to plan ahead?
In the recent article, “What to do in absence of advance directive” by The Roanoke Times, a doctor advises readers to talk to an experienced elder care attorney to coordinate the necessary legal issues that may arise a parent or other loved one may be exhibiting symptoms of dementia with no advance health care directive in place. After consulting with an attorney, ask your physician for an evaluation consultation for your loved one with a board-certified geriatrician and a referral to a social worker to assist in navigating the medical system.
As a family’s planning starts, the issue of legal capacity (frequently referred to as “competency” by some physicians) must be defined. Dementia or a diagnosis of Alzheimer’s disease doesn’t necessarily indicate a lack of capacity. At this point, a patient still has the right to make his or her own financial and life decisions—despite family members disagreeing with it. A patient’s capacity should be evaluated after a number of poor choices or an especially serious choice that puts a patient or others at risk.
An evaluation will determine the patient’s factual understanding of concepts, decision-making and cogent expression of choices, the possible consequences of their choices and reasoning of the decision’s pros and cons. Healthcare professionals make the final determination, and these results are provided to the court.
If a patient passes the evaluation, they are deemed to have the mental capacity to make choices on their own. If they cannot demonstrate competency, an attorney can petition the court for a competency hearing, after which a trustee may be appointed to oversee their affairs.
The time to address these types of issues is before the patient becomes incapacitated. The family should clearly define and explore the topics of advance health care directives, estate planning, and powers of attorney now with an experienced elder law attorney.
Taking these proactive actions can be one of the greatest gifts a person can bestow upon themselves and their loved ones. It can give a family peace of mind. If you put an advance health care directive in place, it can provide that gift when it’s needed the most.
Reference: Roanoke Times (June 17, 2019) “What to do in absence of advance directive”