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As the population ages, planning in the event of incapacity has become increasingly important. According to the 2024 Alzheimer’s Association report, an estimated 6.9 million Americans aged 65 and older are living with Alzheimer’s dementia in 2024, and of that, 73% are aged 75 or older. This same report projects that by 2060, the number of people aged 65 and older with Alzheimer’s dementia is projected to reach 13.8 million.
An All-Too-Familiar Scenario
Spouses complete what they believe to be an adequate estate plan. The estate plan lays out their wishes for the distribution of their assets when the first spouse passes away and then the distribution of their assets when the second spouse passes away. Straightforward and simple—it was all they wanted and planned for, and all they were advised to plan for.
Following the death of the first spouse, the children have now found themselves in the all too familiar situation of caring for the second spouse, who has been diagnosed with dementia and Alzheimer’s, and has reached a point where doctors have determined they no longer have capacity to independently make decisions for themselves. Despite having created wills and trusts to distribute their assets upon each of their respective deaths, the spouses were never advised to complete a durable power of attorney for either healthcare or financial management—the documents needed in the event of incapacity.
Why Power of Attorney Matters
Without the proper power of attorney documents, the children are unable to access funds for doctor’s appointments, home health care, medication, food, etc. Without the proper power of attorney documents for health care, the doctors have no designated person with the legal authority to make medical decisions. Essentially, the second spouse is left in limbo, as they no longer have the capacity to safely make decisions for themselves.
The children’s only solution going forward is to seek a conservatorship through the courts. The children will have to decide who amongst themselves should take on the liability and responsibility of becoming the conservator. The conservator will be subject to the scrutiny of the courts as to how they manage and spend money for their parent’s care, along with health care decisions. This scrutiny before the court remains until the conservatee (the incapacitated person) passes away.
Of course, this only outlines the legal consequences, assuming there are no family disagreements as to who should be the conservator and have financial decision-making control. All of these situations are further complicated by modern-day blended families.
Plan for Every Scenario with Law Stein Anderson
As we live longer and society gets older, statistics tell us that planning for the event of incapacity is critical to a full and complete estate plan. By incorporating necessary documents, like powers of attorney, and working with an experienced estate planning attorney, you can prepare for various scenarios, account for family dynamics, and fully customize your plan for peace of mind. At Law Stein Anderson, we understand the importance of protecting both yourself and your loved ones from the complications that can arise from incapacity. Our team will ensure your estate plan addresses these concerns.
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