Estate planning is a roadmap for transferring a person’s assets upon their death. It preserves their value and lays out the distribution of assets to the beneficiaries. One overlooked but essential aspect of estate planning is a strategy to manage and maintain an estate’s assets if the owner loses cognitive functioning and cannot make sound decisions. This is generally referred to as incapacity planning.
A recent case highlighted by Alan Feigenbaum in J.D. Supra’s article “Confronting Cognitive Abilities in Well-Rounded Estate Planning” reminds us of the complexities and challenges that can arise when cognitive decline is not adequately addressed in estate planning.
The case involves an 80-year-old retired advertising executive, referred to as K.K., who suffered from severe delusions. Influenced by a fraudulent business associate, K.K.’s delusions led to misguided investments that resulted in a significant financial loss. Despite the clear signs of cognitive impairment, K.K. continued to engage in financial decisions that jeopardized his estate’s financial well-being.
K.K.’s son filed a petition to appoint him guardian of his father’s estate to prevent further loss. This situation underscores the need for an estate plan that includes managing the assets and protecting the estate’s value, if the individual is cognitively or mentally impaired.
Key Takeaways
Plan Early and Consider Cognitive Decline: Begin estate planning early and include provisions to carry out plan directives, if cognitive functioning is impaired. This may include purchasing long-term care insurance, or discussing your concerns with trusted loved ones who can watch for signs of decline.
Incorporate Safeguards: Estate plans should have safeguards, such as durable powers of attorney and trusts, which empower trusted individuals to manage your affairs if you become incapacitated. It is also important to update these documents as you suspect decline, the issues in a simple estate plan when you are 30 are different than the issues in a plan considering cognitive decline in your 80’s.
Regular Reviews and Updates: Review and update your estate plan regularly to reflect changes in circumstances, including health status.
Professional Guidance is Key: Navigate the complexities of estate planning with an experienced estate planning attorney. An attorney will structure your estate plan to address potential cognitive decline.
Conclusion
K.K.’s court case underscores why a well-rounded estate plan includes a strategy to protect and manage assets when an individual lacks the cognitive capacity to make decisions. Proactive strategies prevent financial loss and reduce the emotional turmoil when caring for a cognitively impaired loved one. Estate planning gives you the peace of mind that your wishes will be honored, even in mental decline.
Guardianship is often unnecessary or limited thanks to guardianship alternatives which include appropriate estate planning.
Guardianship is the court process by which a Judge appoints a person to make decisions on behalf of someone who cannot make them for themselves. Guardianship is a very involved process which removes or reduces the legal autonomy of the individual and appoints a decision maker for that person. Guardianship can be invasive, time-consuming and costly. Although guardianship is sometimes necessary and beneficiary to the individual, many clients seek to avoid guardianship and, in fact, Texas (and virtually every state’s) law directs you to use less restricting guardianship alternatives where available. The best options require preplanning however, so if you want to avoid the need for guardianship, you should consider some of the following guardianship alternatives. See the article entitled “Guardianships Should Be a Last Resort–Consider These Less Draconian Options First” from Kiplinger for more.
Durable Financial Powers of Attorney
Guardianship often is necessary when an elderly individual loses legal capacity due to dementia, Alzheimer’s or other conditions leading to cognitive decline. In that case, the person cannot make their own financial decisions anymore, so a guardian would need to be appointed to manage their assets.
However, if an individual has a durable financial power of attorney (POA) in place, then this may not be necessary. The POA names an individual to take financial action for you if you can’t yourself. It is usually much better than guardianship as you are the person choosing who will act and you can set the rules as you want. It is also substantially cheaper than guardianship litigation. It is also one of the most important estate planning documents for this reason.
Trusts are more than just will substitutes. In this context, the trustee of the trust can control the assets owned by the trust. So, if the person who created the trust becomes incapacitated, the successor trustee (again a person you choose) can take over and start controlling the assets. This is often a major reason for clients who create revocable trusts later in life or who have concerns about long-term care or management of their assets.
Medical Powers of Attorney
This echoes the issues of the financial POA, namely that you can appoint a person to make medical decisions for you. Now, the law does provide default decision makers for medical decisions makers, so this isn’t typically the reason for a guardian. However, it too is a critical document for several reasons. Among them, you may not want the default to be your decision-maker, it provides clarity of responsibility and lets the decision-maker know in advance what’s expected of them, and finally, avoids delay in a medical crisis when the documents have to figure out your family history to determine who a default decision-maker is.
Naming Fiduciaries for Minors
Another common guardianship scenario is leaving property to minors. Although there are multiple state-based alternatives which might be helpful, such as creating UTMA/UGMA accounts (Uniform Trusts for Minors Act/Uniform Gifts to Minors Act), paying to a court registry or possibly to a parent of that child depending on the circumstance. However, if these alternatives don’t work, you may need a guardian for the minor.
In any case where leaving property is intentional, such as in a will or trust, an easy solution is to establish a trust for the minor within your own documents. This accomplishes several goals, but here, allows for an adult to hold the property for the child. They can then spend the assets on their behalf, such as on education, daily living and so on,
Now, the above are mostly proactive steps, so these are what you can do now to avoid guardianship later. However, if you or a loved one find yourself without sufficiently covering these concerns and contemplating guardianship, there are still some alternatives that might help or help reduce the scope of the guardianship.
Limited Guardianship
This a blog unto itself so this will be brief, but guardianship can be limited in nature. Essentially, the powers of the guardian are limited so that the least autonomy is taking from the individual as possible. This could mean that only assets are under the control of the guardian, or perhaps only to control some personal decisions such as medical decisions.
Joint Ownership
Some families take the step of making a family member a joint owner on a bank or other assets. Now, I didn’t include this as a proactive measure because joint ownership has a litany of difficulties. It includes the risk of creditor issues, potential concerns over gift making, disruption of the estate, plan, tax implications and lends to family disputes. However, should you find yourself with the need for guardianship, this can be a less restrictive guardianship alternative.
Social Security Representative Payees
Social Security pays to an account with a designated rep payee for beneficiaries who can’t act for themselves. So, on this particular account, the rep payee, which is typically a close family member, but could be someone else, is already authorized to control that particular asset. So, this doesn’t typically completely avoid the need for a guardianship, but does mean that one account receiving income can be accessed and utilized for an individual without the intervention of a guardian.
Community Property Administration by a Spouse
This is distinctly a Texas solution, but we have community and separate property. Community property is owned by the marriage, as opposed to the individual. So, depending on the assets of the individual, her marital status and suitability of the spouse to do this, community administration might be a helpful guardianship alternative.
Guardianship Appointment
Although this isn’t a guardianship alternative, I’d be remiss if I didn’t mention it. You have the power to name the person who you would want to be a guardian for you if guardianship is necessary. We routinely prepare these for clients so that should guardianship be necessary, you’ve told the court who should do it. They are very seldom necessary due to the estate planning we put in place, but it serves a belt and suspenders approach to ensure you have as much control over a guardianship process as possible.
Other Alternatives
There are other guardianship alternatives beyond what I included here, but key factor is that preplanning is the best guardianship alternative. Talk with an experienced estate planning attorney to protect yourself or loved ones from having to pursue guardianship.
Doctors are beginning to apply artificial intelligence (AI) to detect and diagnose neurological diseases such as dementia.
Using artificial intelligence (AI), researchers at Boston University School of Medicine designed multiple computer models that used patient data to identify disease-specific signatures. Essentially, they want to use AI to detect dementia and other similar diseases.
Yahoo News’ recent article entitled “AI may detect dementia just as well as doctors: study” says that from these signatures, the AI was able to discern which patients had normal cognition, mild cognitive impairment, Alzheimer’s disease and non-Alzheimer’s disease dementia.
The findings were published in the journal Nature Communications.
“Even in circumstances where a specialized neurologist or neuro-radiologist is too busy to directly provide a diagnosis, it is foreseeable that some degree of automation could step in to help, thereby enabling doctors and their patients to plan treatment accordingly,” said co-author Vijaya B. Kolachalama in a statement.
Past research showed that artificial intelligence is capable of discerning between absence and presence of a disease. The models developed were able to identify certain signals based on dementia related changes in MRI scans. The signals were then found to be associated with brain regions with microscopic evidence of degenerative tissue changes.
The researchers noted this unique capability much more closely mirrors real-world scenarios, since the computer focused on the source of the patient’s illness despite multiple possibilities. Dementia, or chronic alterations in one’s mental status, can be a hallmark of Parkinson’s disease, geriatric depression, or nutritional deficiency as opposed to just Alzheimer’s disease, Kolachalama explained.
“Our study is novel because, unlike work before it, we demonstrate a computational strategy for providing an accurate diagnosis during this diverse landscape of neurologic disease,” he said.
Patient data fed into the algorithms included results of functional testing, demographics, medical history and MRI scans, all of which can be collected during routine doctors’ visits. When compared with diagnoses made by neurologists and neuroradiologists, the researchers’ models met those of the experts. They now plan to conduct further research, including a prospective observational study in memory clinics to better compare the algorithm’s performance with that of clinicians.
“If confirmed in such a head-to-head comparison, our approach has the potential to expand the scope of machine learning for [Alzheimer’s disease] detection and management, and ultimately serve as an assistive screening tool for healthcare practitioners,” they wrote.
