CBA Record November-December 2023

YOUNG LAWYERS SECTION

P ublic awareness of celebrities with Alzheimer’s dementia seems to be increasing. Singer Tony Bennett was diag nosed with Alzheimer’s disease in 2016 but he was able to perform and record music before his death this summer because his disease progressed slowly. Robin Williams died in 2014 and his autopsy showed signs of a type of dementia that often presents with hallucinations and dizziness. Actor Bruce Willis recently announced he was diagnosed with frontotemporal dementia— the second most common type of early onset dementia. Even former President Ronald Reagan struggled with Alzheimer’s and ultimately died from Alzheimer’s-related complications in 2004. Despite increased public awareness, though, it may still be dif ficult for people whose families have not been touched by diag nosis of a loved one’s Alzheimer’s to comprehend the devastating effects of this disease. Often, when one thinks of Alzheimer’s, they think of memory loss and its terrible side effects. However, familiarity with the less common symptoms of the disease could help identify it faster. According to a publication from the American Bar Association, some signs of diminished capacity include but are not limited to a change in behavior, poor hygiene, short-term memory loss, com prehension difficulties, a lack of mental flexibility, difficulty with calculation, emotional inappropriateness, and delusions or dis orientation. Kerry Peck & Rick L. Law, Don’t Let Dementia Steal Everything: Avoid Mistakes, Save Money, and Take Control (2018). Ideally, an elder law attorney will create an estate plan that accounts for challenges that arise as someone ages, including a potential dementia diagnosis, to avoid future complications or disputes regarding document validity and testamentary capacity. The Illinois Supreme Court has set forth the standard for testa mentary capacity: the testator must be capable of knowing what their property is; know who the natural objects of their prop erty are (i.e., heirs or beneficiaries); and understand the nature, consequences, and effect of the act of executing a will. To that end, an attorney should ask the client what day of the week it is, identify the document they are signing and how it will work once executed, describe who the plan is intended to benefit, and explain why the client wants to create this plan. If an attorney has doubts about their client’s capacity, that attorney should raise their concerns with the client or a trusted loved one. Once drafted, attorneys should walk clients through incapacity documents and explain how they work. For example, clients will ESTATE PLANNING FOR CLIENTS WITH ALZHEIMER’S By Hannah Werner

likely need a will, a trust, a medical power of attorney, a financial power of attorney, and/or a general power of attorney. In some instances, guardianship documents may also be necessary. An attorney should also help their client determine who will oversee the client’s finances if the client is unable to do so. Usually, this will fall to a loved one. However, in some cases it may be best for a financial professional to handle the client’s finances upon their incapacity, particularly if family members and loved ones become overwhelmed in caring for individuals with Alzheimer’s. Attorneys should also emphasize the importance of a client creating an estate plan if their spouse is diagnosed with Alzheim er’s. Such planning will ensure that a spouse with Alzheimer’s does not have unrestricted access to funding or property that could further harm them in the advanced stages of their disease. Those with Alzheimer’s will likely require access to funds, but family members may determine that it is in their best interest to limit this access to ensure funds are handled properly. Although Illinois law requires witnesses to make many control ling estate planning documents valid, estate planning attorneys can supply stronger proof of a testator’s capacity by recording the signing ceremony. Like remote signing procedures in Illinois, an elder law attorney can inform their clients that it is in everyone’s best interests to record the signing of wills, trusts, powers of attor ney, and other important documents to negate capacity questions in the future. Generally, it is best practice for an attorney to record every signing ceremony because it not only protects the attor ney, but it also protects the client with Alzheimer’s. If an attorney records the client answering capacity-determining questions, this can reduce any future doubt about what the testator intended, and it can assist in defending against any future claims about testamen tary capacity, intentions, and wrongdoing by the attorney or any intended beneficiaries. It’s frightening to receive an Alzheimer’s diagnosis. An individual with dementia may worry about what will happen when they can’t recognize their loved ones or can’t make decisions for themselves anymore. A seasoned elder law attorney can guide clients and their loved ones through this daunting process.

Hannah Werner is in her final year at Chicago-Kent College of Law and looks forward to a career concentrated in estate planning.

42 November/December 2023