March 24, 2025 • 24 mins
Elder law attorneys regularly encounter clients with dementia, yet many misunderstand that a diagnosis doesn't automatically prevent someone from signing legal documents. Todd Whatley explains when and how individuals with dementia can execute valid legal documents and avoid unnecessary guardianships.
• Understanding dementia as a progressive condition affecting memory and reasoning differently across stages
• Document capacity depends on document risk – higher risk requires greater capacity
• Pushing clients to guardianship unnecessarily removes rights and limits planning options
• Essential documents include comprehensive powers of attorney, healthcare directives, and probate-avoidance planning
• Communication techniques: speak slowly, use simple language, schedule morning appointments
• Legal capacity assessment should be made by the attorney at time of signing, not solely by medical diagnosis
• Early planning remains crucial – encourage clients to complete documents while capacity is clearest
If you're interested in advancing your knowledge in elder law, Medicaid, VA, or estate planning for older people, I would love to work with you. Visit my website theelderlawcoach.com or email me at Todd@theelderlawcoach.com.
Check out our new website www.TheElderLawCoach.com.
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Episode Transcript
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Speaker 1 (00:19):
Thank you.
Specialized experience, Whetheryou're an established attorney
looking to refine your expertiseor an emerging lawyer seeking a
successful foray into elder law, this is your masterclass.
Now let's get started with theluminary in the field.
Here's Todd Whatley.
Speaker 2 (00:39):
That's right.
This is the Elder Law CoachPodcast.
My name is Todd Whatley and, asalways, always, always I am
very glad that you are here withus today.
And I'm talking about a topictoday that is going to come up
in at least half of all of yourmeetings, and that is the client
with dementia.
And so many times, as an elderlaw attorney, you are going to
(01:04):
have clients come in that do nothave full capacity, and
dementia affects millions ofpeople and we, as elder law
attorneys, deal with thisprobably more than most, and I
come from this because thisaffected me way long ago.
When I first started thispractice, I was a young green
attorney, did not work in a bigfirm, I just worked for myself,
(01:25):
and it scared me when attorneyswere like you went to a nursing
home and had someone signdocuments, I was like, well,
yeah, because they were fine, oh, you can't do that.
People in a nursing home orpeople diagnosed with dementia,
they can't sign documentsanymore, and I'm like I know
dementia.
As a physical therapist, I'veworked with people who had
dementia and until the verylater stages, they pretty much
(01:49):
know what they're doing.
They may not remember what theyate for breakfast, but they
know what they're doing and theyknow who they want to be their
agents, and that just made nosense to me.
So I did some research and Idid another podcast just on that
topic.
But this comes up so much.
I wanted to do a podcast wherewe talk about the basics, some
(02:11):
legal and ethical considerationsI'll kind of breeze by that
again just to make sure we allunderstand but then also the key
legal documents that a seniorneeds, how to communicate with
them, and then finally sometakeaways on how we can do this.
Okay, so this is not a absoluterepeat of the previous podcast.
(02:33):
If you've heard that one, don'tleave me.
Let's go through this andfurther expand that topic.
But if you haven't heard mydementia podcast, I would highly
recommend go back and listen toit, because people have told me
Todd, that podcast pointed outsome very important things,
helped my thinking on this and Ithink it is absolutely one of
(02:56):
my most popular podcasts.
It's had the most downloads andso I would recommend go back
and listen to it.
Probably after this one, youcan do this one, but then go
back and if you leave this onethinking, I don't know people
with dementia, can they reallysign documents.
Yes, they can go back andlisten to that and that will, I
think, very much clarify yourthinking.
(03:18):
Okay, so, understanding dementia, what is it?
It is simply a dementia is anumbrella term.
That just means that the brainis kind of deteriorating like a
muscle.
It just deteriorates, it getsweaker and it doesn't do the job
that it used to.
There is memory, and I thinkthat is the most common issue is
(03:41):
people have short-term memoryloss.
They can remember what they did40, 50 years ago, because
that's in a different type ofbrain, and particularly
Alzheimer's does not affect thatlong-term part of the brain as
much as it does the short-termmemory, and so therefore it
causes an issue with short-termmemory.
(04:02):
So there are many types ofdementia Alzheimer's, vascular
dementia, lewy body, frontal,temporal.
There's just all kinds ofdementia that are different.
They look different, but ingeneral the brain slows down and
it starts to decrease thefunctions of the brain to the
point where eventually, theperson dies.
(04:24):
The brain can't run the bodyanymore and people simply die.
So memory loss is the numberone thing we think about.
But also there is reasoningissues.
Those people with dementiasometimes cannot reason very
well and that's why scams are soprevalent among people with
dementia is because they don't.
(04:45):
They can't reason that I reallydid not win $20 million from a
Nigerian prince or this person.
This serviceman living in Indiareally does love me and wants
to come and buy things for meand do things.
I've just got to pay him tocome here.
They just don't understand that.
(05:07):
That really doesn't make sense,which then also leads to
decision-making issues wherethey are easily influenced by
family members and justdifferent things okay.
And dementia comes in stages.
It starts very minimal,progresses to being very
(05:28):
significant in the later stagesand, like I said, eventually the
brain gets to the point whereit just can't run the body
anymore and the person passesaway.
So we as elder law attorneysneed to encourage people do your
documents now.
Pre-planning is always betterthan late planning.
Come in, see us now.
And particularly if a person'shaving no issues, they're like
(05:51):
meh, I'm fine, I don't have toworry about it.
But it is those people who havebeen diagnosed with some sort
of dementia that are verymotivated to come see you.
The family is very motivated.
And if they go to a normalnon-elder law attorney and sadly
some elder law attorneys andthey're like yeah, I've been
(06:13):
diagnosed with dementia, I needto do documents.
They're like nope, sorry, youcan't do documents, you've been
diagnosed.
That is absolutely not thestandard of care in a person
early with a dementia diagnosiscan sign documents.
Now that brings up a whole lotof legal and ethical
considerations.
(06:33):
Okay, so what you need to thinkabout here is this person.
Where are they today?
And what makes a document legalis at the time of signing.
Did the people meet thoserequisites?
Okay, and I will tell you thatrequisite is not what you were
taught in law school.
It's about can they completelyname everything in their estate
(06:58):
and completely explain who alltheir natural heirs are in the
relationship between those two?
That is a standard, but it'snot the standard, particularly
for power of attorney.
Basically, my standard is canthey, you know?
Do they know who the person iswho should be doing this job?
(07:19):
And knowing that and being ableto explain this person has been
doing it.
It makes sense for them to doit and I want them to continue
to do it with this legaldocument.
The issue then becomes whatabout the document?
Ok, and I think what we are nottaught in law school, and this
is what I did on the otherpodcast.
(07:41):
I go into this in depth is youneed to look at the risk of the
document.
How risky is this document thatthey're doing?
And there's a huge differencein the requisite.
(08:18):
Appoint that son as thefinancial power of attorney.
They have a daughter who's adoctor and that makes sense for
them to be the medical power ofattorney.
They have a daughter who's adoctor and that makes sense for
them to be the medical power ofattorney.
That doctor's daughter may notlive close by and so therefore
they're not as intimatelyinvolved in their day-to-day so
that they would be the financialpower of attorney.
(08:40):
But they're a doctor, theyunderstand medicine.
That makes sense that thatchild would be the healthcare
power of attorney.
But they're a doctor, theyunderstand medicine.
That makes sense that thatchild would be the healthcare
power of attorney.
That is a very low-riskdocument.
That just makes sense.
Now same client comes in withthe brand new caregiver, who's
cute and a little needy and hasa house full of kids that she
(09:01):
throws into daycare, and comesto sweet little old man and says
, hey, why don't you make meyour power of attorney with the
intent of stealing his money?
Okay, Dad comes to you and says, yeah, I want to appoint this
brand new caregiver as myfinancial agent.
You're like, hmm, Now the funnypart is, it's not that I would
(09:24):
not do that, Okay.
And you're like, Todd, what thecrap?
There were times not in thatfact pattern where they are
bypassing a son who's a CPA,daughter who's a doctor that are
intimately involved in theirlife and she's now talked him
into not using them and usingher.
Yeah, In that fact pattern, Idon't think there's anything
(09:47):
that would tell me I would dodocuments appointing the
caregiver.
But if they came to me withoutthe kids close by and the kids
had not talked to dad in years,they truly were not involved.
And the caregiver, preferably,is not brand brand new that he
(10:10):
just met her, but maybe thedaughter of a good friend of his
that he's known for years.
And there are facts there that,if the person can tell me that.
But here's the point To sign ahigh-risk document, the person
actually needs a higher level ofcapacity.
To explain to me why I wantthis person to be my agent, not
(10:35):
a low-risk person, okay, so ifyou read your ethical rules,
with your state bar particularlyrepresenting someone with
diminished capacity, read therule, but then also read the
comments, and you will see somecomments there that talk about
the risk of the document.
(10:55):
Most of us have never read thatdon't understand it or like
wait, why is that in there thatdon't understand it or like wait
, why is that in there?
I've done the research and Ican tell you it does depend on
the risk of the document.
Not just can this person recitethe requirements that you
learned in law school.
And let me just say this realquick not allowing someone with
(11:16):
beginning stages of dementia tosign a document requires what
Guardianship?
We're going to court.
The client is losing theirrights.
They're absolutely inguardianship court.
They will lose their rights andprobably the judge is going to
do exactly what you were goingto do on the power of attorney.
Name the son, the CPA, as thefinancial agent and the daughter
(11:39):
, the doctor, as a health careagent.
The judge is going to doexactly what you were going to
do in the documents, why forceus all through the court process
?
And if you do much Medicaid, ina lot of states you cannot do
advanced Medicaid planning undera guardianship and therefore
(11:59):
you will lose the chance toprotect the estate simply
because you would not let dadsign documents because he had
beginning stages of dementia.
Go back to my other podcast.
Spend some time there and I doexplore that in depth over there
.
So what are the key legaldocuments that a person needs?
Some of the planning strategies.
(12:20):
Number one everyone over the ageof 18 needs a power of attorney
, but particularly if you'vebeen diagnosed with dementia and
we pretty much know, unlessthis person for some reason
drops dead, they are going tospend some time truly
incapacitated and cannot handletheir affairs they absolutely
must have power of attorney and,as I always say, it should be
(12:41):
an immediately effective powerof attorney.
And and as I always say, itshould be an immediately
effective power of attorney andbe very comprehensive you want
the agent to be able to dowhatever needs to be done when
the time comes, both healthcareand financial.
You also want to do healthcaredirectives.
You want this person to be ableto tell the world here's what I
(13:02):
don't want.
When that time comes, Okay, IfI am truly incapacitated, I
cannot answer those questions.
Here are the things I want youto do to me.
Here's the things I don't wantyou to do for me, Okay.
Then we also need to thinkabout death and dying.
They need to avoid probate inalmost all states, and sometimes
(13:22):
that's a trust, Sometimes it'sbeneficiary designations,
Whatever that person needs fortheir estate planning documents.
Now is the time to do it.
Don't wait till later.
Convince them.
You can think about this for aday or two, a week or two, but
you've really got to get back inhere.
Get these documents signed,because dementia is a
progressive disease and you'renot got to get back in here.
Get these documents signed,because dementia is a
(13:43):
progressive disease and you'renot going to get better.
You're going to get worse, andwe've got to get this done
before anyone starts causingproblems.
There are times that we need aguardianship or a
conservatorship.
I always do that as an absolutelast resort, because the client
loses their rights.
(14:03):
We can't do Medicaid planning.
I mean you have a lifetimecommitment with the court.
I mean there's a lot of thingsgoing on there that you want to
avoid, and generally by doingthe power of attorney, we can
avoid a guardianship, and so whynot do it?
And then also, a lot offamilies are concerned.
Okay, since mom has dementia,there's probably going to be a
(14:26):
point where we cannot deal withher anymore at home.
She is beyond our capabilities.
We need to look at long-termcare.
That is expensive, and they arewanting some answers on that.
And so that's where you candiscuss some of the pre-planning
things we do with MedicaidPossibly implement an
(14:48):
irrevocable trust not always,and honestly, not very often but
sometimes the fact pattern doesfit where an irrevocable trust
is appropriate and you do it.
But sometimes people come to usa little bit too late.
They're not going into thenursing home right now, but they
will go later on, and I will goahead and go through a crisis
(15:09):
Medicaid plan with them, justexplaining it to them.
It's like, hey, here's what'sgoing to happen, Since we're
probably not going to make itfive years, Don't panic, it's
fine, we can protect things, andhere's how we do it.
And I just, if they will tellyou their financial numbers, you
can use their numbers and say,look, here's how we'll do this.
(15:31):
Now, if you are an elder lawattorney who does a lot of
crisis Medicaid, I will warn youand I've learned this the hard
way is, as you're going throughthis, the people sitting at that
table watching you go throughthis presentation are like he's
a lawyer.
This person down the street's alawyer.
I know some other lawyers, soI'll learn this from him.
(15:53):
But I'll go to Joe Blow, thecriminal defense attorney, and
I'm sure, since Todd knows this,that my lawyer knows this.
You've got to tell them look,and once you go through this,
they're like oh, OK, that'spretty cool.
I always say look, there may be10 people in this state who can
(16:14):
tell you what I just told you.
Ok, this is something that Ispecialize on.
They don't teach this in lawschool.
This is something that I do andI will tell you most attorneys
don't teach this in law school.
This is something that I do andI will tell you most attorneys
won't do this.
I'm not telling you that youhave to come back and see me
when you need long-term care,but I'm just saying take a
picture of this board and whenyou go to your attorney and they
(16:37):
think they can do this if theydon't draw this exact thing on
the board.
Do this.
If they don't draw this exactthing on the board showing you
how they can protect a whole lotof money.
If they tell you, oh, just geta divorce or deed the house to
the kids, whatever you know, anyof that crazy non-elder law
Medicaid advice, you have towarn them because they literally
(17:00):
think all lawyers are alike andif you know this, their family
divorce lawyer is going to knowthis.
So you've got to set thatexpectation and say, look, this
is something that I do and veryfew other attorneys do it.
You really do need to come backand see me for this, All right.
So some pointers oncommunicating with patients with
(17:22):
dementia.
I learned this a long time agowhen I was doing physical
therapy.
I did nursing home and homehealth, PT, and I was 22 years
old working with people withdementia, and I learned just by
doing it.
But one of the things is youhave to speak slowly and clearly
.
Their senses, their brain, isdeteriorating and so therefore,
(17:45):
most of their senses, they don'tprocess as quickly and so you
don't talk to them like you'retalking to a baby, but you do
slow down and speak clearly andmake sure that they understand
what you're saying.
All right, you don't speakquickly and just, you know.
Just slow down and speakintently, shall we say, and
(18:09):
clearly, so that they canunderstand and periodically say
did you get that?
Do you understand what I'msaying?
Repeat to me in your words whatI just said.
Use simple language, Okay.
Don't use legal jargon.
Don't use complicated words.
Literally.
You have to talk to them likethey are about a sixth grade
(18:30):
level, 12, 13 years old, Notbaby talk and not talking down
to them, but just talk to themlike they have about a sixth
grade education.
And this is even people thatare highly educated.
Their brain is deteriorating tothe point at this point where
they're probably a teenager andmaybe even a young teenager.
(18:52):
Okay, I like to use visuals.
I like to.
You know, I always like to havesome other family there so that
they can understand what I'msaying and maybe repeat this to
the person later on numeroustimes, since their short-term
memory is not very good.
Make sure that your meeting roomis very isolated, quiet, not
(19:15):
distractions going around, and Iwill tell you, morning meetings
are almost always better thanevening meetings.
Okay, this person may not be amorning person and their first
meeting may be in the afternoon.
But I would ask the familycompared to now, how are they
when they first wake up in themorning?
And they'll say they're prettygood.
(19:37):
Okay, Well, let's schedule thesigning meeting in the morning
rather than late in theafternoon, because this thing
called sundowners is real.
It is a real thing that affectspeople and you want to get
people in the morning so thatthey are fresh, their brain is
rested, they're hopefullyhydrated, fed medicines,
(19:59):
everything is the perfectsituation and if a person at
that point knows what they'redoing, they can sign documents.
They may be completelyincapacitated that evening.
And let me just go on a rabbittrail real quick is you don't
need a doctor's order in orderto do this or a doctor's opinion
(20:20):
to do this.
You are an attorney.
You have the ability to decideif this person has the legal
ability to sign these documents.
Okay, when I am grading theCELA exams and this is a point
for someone if you are about totake the exam, I do grade very
frequently and if, on a dementiaquestion, they're like oh, I
(20:44):
absolutely make sure that adoctor approves this, you're
going to lose points youprobably will not pass that
question, to be honest, becausethat is not the standard.
The standard is when the personsigns documents.
Now, if the doctor is sittingthere with you, which never
happens, but If, by chance, thedoctor is sitting there with you
, sure you can say what is youropinion of this.
(21:07):
Does this person know what'sgoing on?
But when that person goes tothe doctor, maybe in the
afternoon, and the doctor's like, oh, they don't know what's
going on.
Number one, they were not therewhen the person signed the
documents signing meetings inthe morning, that person could
(21:31):
be in a completely differentmental state than when they went
to see the physician.
All right, some takeaways Alwaysencourage early planning.
When you do public events, tellpeople, look, come see me.
Now You're at this event,You're up and going, it's time
to come see me and make surethat they understand.
Even though you've beendiagnosed with dementia and even
(21:53):
if someone, some other attorney, told you that you can't sign
documents, come see me.
Okay, let's talk about it.
They may be right.
Okay, they may have advanceddementia to the, so that you can
understand, because this issomething that you are going to
(22:33):
see a lot and I encourage you tobe really good at this.
Okay, and understand what'sgoing on and understand that
just because someone hasdementia does not mean that they
cannot sign documents.
All right, I hope this helped.
If you think I'm completely offmy rocker, email me Todd at
(22:56):
TheUtterLawCoachcom.
I would love to discuss thiswith you and show you the exact
ethical guidelines that I amreferring to.
But hopefully this frees you upto say you know, I just told
someone no, and I really I thinkthey could have, but just, you
know, that perception of theyhave a diagnosis of dementia, so
therefore they can't signdocuments, is wrong.
(23:18):
Get them back in, talk to themagain and say hey, I was wrong,
I think we can do this and thatwill save you a ton of time and
money and prevent them fromhaving their rights taken away
with a guardianship.
All right, I would love to beyour coach.
Okay, so if you are interestedin advancing your knowledge in
elder law, Medicaid, VA, estateplanning for older people, I
(23:43):
would love to work with you.
Go to my website, Todd, or.
The elderlawcoachcom is thewebsite you can email me at Todd
at the elderlawcoachcom.
Also include Tricia T-R-I-S-H-Ain those emails, because I miss
some emails every now and thenand she's pretty good about
catching them.
So thank you for listening andI will see you next time.
Speaker 1 (24:12):
Thank you for joining this episode of the Elder Law
Coach podcast.
For those eager to take theirelder law practice to new
heights and are interested inTodd's acclaimed coaching
program, visitwwwtheelderlawcoachcom.
With Todd Whatley by your side,the journey to becoming an
elder law authority has neverbeen more achievable.
Until next time, keep learning,keep growing and stay
passionate about elder law.
Thank you.
Specialized experience, Whetheryou're an established attorney
looking to refine your expertiseor an emerging lawyer seeking a
successful foray into elder law, this is your masterclass.
Now let's get started with theluminary in the field.
Here's Todd Whatley.
Speaker 2 (00:39):
That's right.
This is the Elder Law CoachPodcast.
My name is Todd Whatley and, asalways, always, always I am
very glad that you are here withus today.
And I'm talking about a topictoday that is going to come up
in at least half of all of yourmeetings, and that is the client
with dementia.
And so many times, as an elderlaw attorney, you are going to
(01:04):
have clients come in that do nothave full capacity, and
dementia affects millions ofpeople and we, as elder law
attorneys, deal with thisprobably more than most, and I
come from this because thisaffected me way long ago.
When I first started thispractice, I was a young green
attorney, did not work in a bigfirm, I just worked for myself,
(01:25):
and it scared me when attorneyswere like you went to a nursing
home and had someone signdocuments, I was like, well,
yeah, because they were fine, oh, you can't do that.
People in a nursing home orpeople diagnosed with dementia,
they can't sign documentsanymore, and I'm like I know
dementia.
As a physical therapist, I'veworked with people who had
dementia and until the verylater stages, they pretty much
(01:49):
know what they're doing.
They may not remember what theyate for breakfast, but they
know what they're doing and theyknow who they want to be their
agents, and that just made nosense to me.
So I did some research and Idid another podcast just on that
topic.
But this comes up so much.
I wanted to do a podcast wherewe talk about the basics, some
(02:11):
legal and ethical considerationsI'll kind of breeze by that
again just to make sure we allunderstand but then also the key
legal documents that a seniorneeds, how to communicate with
them, and then finally sometakeaways on how we can do this.
Okay, so this is not a absoluterepeat of the previous podcast.
(02:33):
If you've heard that one, don'tleave me.
Let's go through this andfurther expand that topic.
But if you haven't heard mydementia podcast, I would highly
recommend go back and listen toit, because people have told me
Todd, that podcast pointed outsome very important things,
helped my thinking on this and Ithink it is absolutely one of
(02:56):
my most popular podcasts.
It's had the most downloads andso I would recommend go back
and listen to it.
Probably after this one, youcan do this one, but then go
back and if you leave this onethinking, I don't know people
with dementia, can they reallysign documents.
Yes, they can go back andlisten to that and that will, I
think, very much clarify yourthinking.
(03:18):
Okay, so, understanding dementia, what is it?
It is simply a dementia is anumbrella term.
That just means that the brainis kind of deteriorating like a
muscle.
It just deteriorates, it getsweaker and it doesn't do the job
that it used to.
There is memory, and I thinkthat is the most common issue is
(03:41):
people have short-term memoryloss.
They can remember what they did40, 50 years ago, because
that's in a different type ofbrain, and particularly
Alzheimer's does not affect thatlong-term part of the brain as
much as it does the short-termmemory, and so therefore it
causes an issue with short-termmemory.
(04:02):
So there are many types ofdementia Alzheimer's, vascular
dementia, lewy body, frontal,temporal.
There's just all kinds ofdementia that are different.
They look different, but ingeneral the brain slows down and
it starts to decrease thefunctions of the brain to the
point where eventually, theperson dies.
(04:24):
The brain can't run the bodyanymore and people simply die.
So memory loss is the numberone thing we think about.
But also there is reasoningissues.
Those people with dementiasometimes cannot reason very
well and that's why scams are soprevalent among people with
dementia is because they don't.
(04:45):
They can't reason that I reallydid not win $20 million from a
Nigerian prince or this person.
This serviceman living in Indiareally does love me and wants
to come and buy things for meand do things.
I've just got to pay him tocome here.
They just don't understand that.
(05:07):
That really doesn't make sense,which then also leads to
decision-making issues wherethey are easily influenced by
family members and justdifferent things okay.
And dementia comes in stages.
It starts very minimal,progresses to being very
(05:28):
significant in the later stagesand, like I said, eventually the
brain gets to the point whereit just can't run the body
anymore and the person passesaway.
So we as elder law attorneysneed to encourage people do your
documents now.
Pre-planning is always betterthan late planning.
Come in, see us now.
And particularly if a person'shaving no issues, they're like
(05:51):
meh, I'm fine, I don't have toworry about it.
But it is those people who havebeen diagnosed with some sort
of dementia that are verymotivated to come see you.
The family is very motivated.
And if they go to a normalnon-elder law attorney and sadly
some elder law attorneys andthey're like yeah, I've been
(06:13):
diagnosed with dementia, I needto do documents.
They're like nope, sorry, youcan't do documents, you've been
diagnosed.
That is absolutely not thestandard of care in a person
early with a dementia diagnosiscan sign documents.
Now that brings up a whole lotof legal and ethical
considerations.
(06:33):
Okay, so what you need to thinkabout here is this person.
Where are they today?
And what makes a document legalis at the time of signing.
Did the people meet thoserequisites?
Okay, and I will tell you thatrequisite is not what you were
taught in law school.
It's about can they completelyname everything in their estate
(06:58):
and completely explain who alltheir natural heirs are in the
relationship between those two?
That is a standard, but it'snot the standard, particularly
for power of attorney.
Basically, my standard is canthey, you know?
Do they know who the person iswho should be doing this job?
(07:19):
And knowing that and being ableto explain this person has been
doing it.
It makes sense for them to doit and I want them to continue
to do it with this legaldocument.
The issue then becomes whatabout the document?
Ok, and I think what we are nottaught in law school, and this
is what I did on the otherpodcast.
(07:41):
I go into this in depth is youneed to look at the risk of the
document.
How risky is this document thatthey're doing?
And there's a huge differencein the requisite.
(08:18):
Appoint that son as thefinancial power of attorney.
They have a daughter who's adoctor and that makes sense for
them to be the medical power ofattorney.
They have a daughter who's adoctor and that makes sense for
them to be the medical power ofattorney.
That doctor's daughter may notlive close by and so therefore
they're not as intimatelyinvolved in their day-to-day so
that they would be the financialpower of attorney.
(08:40):
But they're a doctor, theyunderstand medicine.
That makes sense that thatchild would be the healthcare
power of attorney.
But they're a doctor, theyunderstand medicine.
That makes sense that thatchild would be the healthcare
power of attorney.
That is a very low-riskdocument.
That just makes sense.
Now same client comes in withthe brand new caregiver, who's
cute and a little needy and hasa house full of kids that she
(09:01):
throws into daycare, and comesto sweet little old man and says
, hey, why don't you make meyour power of attorney with the
intent of stealing his money?
Okay, Dad comes to you and says, yeah, I want to appoint this
brand new caregiver as myfinancial agent.
You're like, hmm, Now the funnypart is, it's not that I would
(09:24):
not do that, Okay.
And you're like, Todd, what thecrap?
There were times not in thatfact pattern where they are
bypassing a son who's a CPA,daughter who's a doctor that are
intimately involved in theirlife and she's now talked him
into not using them and usingher.
Yeah, In that fact pattern, Idon't think there's anything
(09:47):
that would tell me I would dodocuments appointing the
caregiver.
But if they came to me withoutthe kids close by and the kids
had not talked to dad in years,they truly were not involved.
And the caregiver, preferably,is not brand brand new that he
(10:10):
just met her, but maybe thedaughter of a good friend of his
that he's known for years.
And there are facts there that,if the person can tell me that.
But here's the point To sign ahigh-risk document, the person
actually needs a higher level ofcapacity.
To explain to me why I wantthis person to be my agent, not
(10:35):
a low-risk person, okay, so ifyou read your ethical rules,
with your state bar particularlyrepresenting someone with
diminished capacity, read therule, but then also read the
comments, and you will see somecomments there that talk about
the risk of the document.
(10:55):
Most of us have never read thatdon't understand it or like
wait, why is that in there thatdon't understand it or like wait
, why is that in there?
I've done the research and Ican tell you it does depend on
the risk of the document.
Not just can this person recitethe requirements that you
learned in law school.
And let me just say this realquick not allowing someone with
(11:16):
beginning stages of dementia tosign a document requires what
Guardianship?
We're going to court.
The client is losing theirrights.
They're absolutely inguardianship court.
They will lose their rights andprobably the judge is going to
do exactly what you were goingto do on the power of attorney.
Name the son, the CPA, as thefinancial agent and the daughter
(11:39):
, the doctor, as a health careagent.
The judge is going to doexactly what you were going to
do in the documents, why forceus all through the court process
?
And if you do much Medicaid, ina lot of states you cannot do
advanced Medicaid planning undera guardianship and therefore
(11:59):
you will lose the chance toprotect the estate simply
because you would not let dadsign documents because he had
beginning stages of dementia.
Go back to my other podcast.
Spend some time there and I doexplore that in depth over there
.
So what are the key legaldocuments that a person needs?
Some of the planning strategies.
(12:20):
Number one everyone over the ageof 18 needs a power of attorney
, but particularly if you'vebeen diagnosed with dementia and
we pretty much know, unlessthis person for some reason
drops dead, they are going tospend some time truly
incapacitated and cannot handletheir affairs they absolutely
must have power of attorney and,as I always say, it should be
(12:41):
an immediately effective powerof attorney.
And and as I always say, itshould be an immediately
effective power of attorney andbe very comprehensive you want
the agent to be able to dowhatever needs to be done when
the time comes, both healthcareand financial.
You also want to do healthcaredirectives.
You want this person to be ableto tell the world here's what I
(13:02):
don't want.
When that time comes, Okay, IfI am truly incapacitated, I
cannot answer those questions.
Here are the things I want youto do to me.
Here's the things I don't wantyou to do for me, Okay.
Then we also need to thinkabout death and dying.
They need to avoid probate inalmost all states, and sometimes
(13:22):
that's a trust, Sometimes it'sbeneficiary designations,
Whatever that person needs fortheir estate planning documents.
Now is the time to do it.
Don't wait till later.
Convince them.
You can think about this for aday or two, a week or two, but
you've really got to get back inhere.
Get these documents signed,because dementia is a
progressive disease and you'renot got to get back in here.
Get these documents signed,because dementia is a
(13:43):
progressive disease and you'renot going to get better.
You're going to get worse, andwe've got to get this done
before anyone starts causingproblems.
There are times that we need aguardianship or a
conservatorship.
I always do that as an absolutelast resort, because the client
loses their rights.
(14:03):
We can't do Medicaid planning.
I mean you have a lifetimecommitment with the court.
I mean there's a lot of thingsgoing on there that you want to
avoid, and generally by doingthe power of attorney, we can
avoid a guardianship, and so whynot do it?
And then also, a lot offamilies are concerned.
Okay, since mom has dementia,there's probably going to be a
(14:26):
point where we cannot deal withher anymore at home.
She is beyond our capabilities.
We need to look at long-termcare.
That is expensive, and they arewanting some answers on that.
And so that's where you candiscuss some of the pre-planning
things we do with MedicaidPossibly implement an
(14:48):
irrevocable trust not always,and honestly, not very often but
sometimes the fact pattern doesfit where an irrevocable trust
is appropriate and you do it.
But sometimes people come to usa little bit too late.
They're not going into thenursing home right now, but they
will go later on, and I will goahead and go through a crisis
(15:09):
Medicaid plan with them, justexplaining it to them.
It's like, hey, here's what'sgoing to happen, Since we're
probably not going to make itfive years, Don't panic, it's
fine, we can protect things, andhere's how we do it.
And I just, if they will tellyou their financial numbers, you
can use their numbers and say,look, here's how we'll do this.
(15:31):
Now, if you are an elder lawattorney who does a lot of
crisis Medicaid, I will warn youand I've learned this the hard
way is, as you're going throughthis, the people sitting at that
table watching you go throughthis presentation are like he's
a lawyer.
This person down the street's alawyer.
I know some other lawyers, soI'll learn this from him.
(15:53):
But I'll go to Joe Blow, thecriminal defense attorney, and
I'm sure, since Todd knows this,that my lawyer knows this.
You've got to tell them look,and once you go through this,
they're like oh, OK, that'spretty cool.
I always say look, there may be10 people in this state who can
(16:14):
tell you what I just told you.
Ok, this is something that Ispecialize on.
They don't teach this in lawschool.
This is something that I do andI will tell you most attorneys
don't teach this in law school.
This is something that I do andI will tell you most attorneys
won't do this.
I'm not telling you that youhave to come back and see me
when you need long-term care,but I'm just saying take a
picture of this board and whenyou go to your attorney and they
(16:37):
think they can do this if theydon't draw this exact thing on
the board.
Do this.
If they don't draw this exactthing on the board showing you
how they can protect a whole lotof money.
If they tell you, oh, just geta divorce or deed the house to
the kids, whatever you know, anyof that crazy non-elder law
Medicaid advice, you have towarn them because they literally
(17:00):
think all lawyers are alike andif you know this, their family
divorce lawyer is going to knowthis.
So you've got to set thatexpectation and say, look, this
is something that I do and veryfew other attorneys do it.
You really do need to come backand see me for this, All right.
So some pointers oncommunicating with patients with
(17:22):
dementia.
I learned this a long time agowhen I was doing physical
therapy.
I did nursing home and homehealth, PT, and I was 22 years
old working with people withdementia, and I learned just by
doing it.
But one of the things is youhave to speak slowly and clearly
.
Their senses, their brain, isdeteriorating and so therefore,
(17:45):
most of their senses, they don'tprocess as quickly and so you
don't talk to them like you'retalking to a baby, but you do
slow down and speak clearly andmake sure that they understand
what you're saying.
All right, you don't speakquickly and just, you know.
Just slow down and speakintently, shall we say, and
(18:09):
clearly, so that they canunderstand and periodically say
did you get that?
Do you understand what I'msaying?
Repeat to me in your words whatI just said.
Use simple language, Okay.
Don't use legal jargon.
Don't use complicated words.
Literally.
You have to talk to them likethey are about a sixth grade
(18:30):
level, 12, 13 years old, Notbaby talk and not talking down
to them, but just talk to themlike they have about a sixth
grade education.
And this is even people thatare highly educated.
Their brain is deteriorating tothe point at this point where
they're probably a teenager andmaybe even a young teenager.
(18:52):
Okay, I like to use visuals.
I like to.
You know, I always like to havesome other family there so that
they can understand what I'msaying and maybe repeat this to
the person later on numeroustimes, since their short-term
memory is not very good.
Make sure that your meeting roomis very isolated, quiet, not
(19:15):
distractions going around, and Iwill tell you, morning meetings
are almost always better thanevening meetings.
Okay, this person may not be amorning person and their first
meeting may be in the afternoon.
But I would ask the familycompared to now, how are they
when they first wake up in themorning?
And they'll say they're prettygood.
(19:37):
Okay, Well, let's schedule thesigning meeting in the morning
rather than late in theafternoon, because this thing
called sundowners is real.
It is a real thing that affectspeople and you want to get
people in the morning so thatthey are fresh, their brain is
rested, they're hopefullyhydrated, fed medicines,
(19:59):
everything is the perfectsituation and if a person at
that point knows what they'redoing, they can sign documents.
They may be completelyincapacitated that evening.
And let me just go on a rabbittrail real quick is you don't
need a doctor's order in orderto do this or a doctor's opinion
(20:20):
to do this.
You are an attorney.
You have the ability to decideif this person has the legal
ability to sign these documents.
Okay, when I am grading theCELA exams and this is a point
for someone if you are about totake the exam, I do grade very
frequently and if, on a dementiaquestion, they're like oh, I
(20:44):
absolutely make sure that adoctor approves this, you're
going to lose points youprobably will not pass that
question, to be honest, becausethat is not the standard.
The standard is when the personsigns documents.
Now, if the doctor is sittingthere with you, which never
happens, but If, by chance, thedoctor is sitting there with you
, sure you can say what is youropinion of this.
(21:07):
Does this person know what'sgoing on?
But when that person goes tothe doctor, maybe in the
afternoon, and the doctor's like, oh, they don't know what's
going on.
Number one, they were not therewhen the person signed the
documents signing meetings inthe morning, that person could
(21:31):
be in a completely differentmental state than when they went
to see the physician.
All right, some takeaways Alwaysencourage early planning.
When you do public events, tellpeople, look, come see me.
Now You're at this event,You're up and going, it's time
to come see me and make surethat they understand.
Even though you've beendiagnosed with dementia and even
(21:53):
if someone, some other attorney, told you that you can't sign
documents, come see me.
Okay, let's talk about it.
They may be right.
Okay, they may have advanceddementia to the, so that you can
understand, because this issomething that you are going to
(22:33):
see a lot and I encourage you tobe really good at this.
Okay, and understand what'sgoing on and understand that
just because someone hasdementia does not mean that they
cannot sign documents.
All right, I hope this helped.
If you think I'm completely offmy rocker, email me Todd at
(22:56):
TheUtterLawCoachcom.
I would love to discuss thiswith you and show you the exact
ethical guidelines that I amreferring to.
But hopefully this frees you upto say you know, I just told
someone no, and I really I thinkthey could have, but just, you
know, that perception of theyhave a diagnosis of dementia, so
therefore they can't signdocuments, is wrong.
(23:18):
Get them back in, talk to themagain and say hey, I was wrong,
I think we can do this and thatwill save you a ton of time and
money and prevent them fromhaving their rights taken away
with a guardianship.
All right, I would love to beyour coach.
Okay, so if you are interestedin advancing your knowledge in
elder law, Medicaid, VA, estateplanning for older people, I
(23:43):
would love to work with you.
Go to my website, Todd, or.
The elderlawcoachcom is thewebsite you can email me at Todd
at the elderlawcoachcom.
Also include Tricia T-R-I-S-H-Ain those emails, because I miss
some emails every now and thenand she's pretty good about
catching them.
So thank you for listening andI will see you next time.
Speaker 1 (24:12):
Thank you for joining this episode of the Elder Law
Coach podcast.
For those eager to take theirelder law practice to new
heights and are interested inTodd's acclaimed coaching
program, visitwwwtheelderlawcoachcom.
With Todd Whatley by your side,the journey to becoming an
elder law authority has neverbeen more achievable.
Until next time, keep learning,keep growing and stay
passionate about elder law.
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