Dementia Post #3 - Legal Matters
NB - this is nOT legal advice, it is only meant to aid you in knowing your options. It is best to seek legal advice for these matters.
People living with dementia will need someone to handle their affairs at some point
A person never knows if/when they will develop dementia and a lot of symptoms may be chalked up to brain fog or a “senior moment”. Some medical conditions, indeed some nutritional deficiencies may mimic dementia (B-12 deficiency is one of them). Symptoms may be overlooked until it is too late until a person has serious dementia symptoms which means they may not have the capacity to sign documents. This means hiring lawyers, time delays and lots of money spent.
Quick Facts
There are three important documents everyone should have. These documents must be signed before the person loses capacity to make their own decisions or they can be deemed invalid.
Will - comes into effect after death. When a person dies without a will, they are intestate. The court decides who gets what and it can be costly.
Advance Care Plan aka a Living Will - comes into effect when you cannot speak for yourself. An example would be if you were in a serious accident and on life support. This allows your designated decision maker to communicate your wishes about your health and medical care. They would be the ones to decide on whether your medical treatment will include extraordinary measures. The person you name must agree to act as your decision maker.
Without your wishes being known, the default is that health care providers are required to do everything they can which may mean CPR and/or being put on a ventilator (life support). This is not always a good thing, details below.
Enduring Power of Attorney - this only comes into effect when you lose the capacity to make your own decisions; it expires upon your death. You can choose to limit their powers. The person you name must agree to act as your EPOA.
A lot of people can be hesitant to get these documents drawn up, thinking it must be complicated. It doesn’t have to be.
A great example of this is the story of the Saskatchewan Fender Will - the most famous holographic will in Canada. This is the case of a Saskatchewan farmer who was pinned by an overturned tractor near Rosetown SK in 1948. Not knowing if he would survive, he took out his pocket knife and scratched the following words in the fender with his signature underneath.
“In case I die in this mess I leave all to the wife.”
Cecil Geo. Harris
He did not survive. The fender was removed, the court examined it and upheld the holographic will. The fender and the knife are now on display in the University of Saskatchewan College of Law Library
Without these documents in place, the risk is high for people to be taken advantage of if they do not make their wishes clear. A number of seniors are suspicious of people and are loath to sign a paper that may limit their ability to make their own decisions.
Family members may have a lot of trouble getting their loved one to sign a will, never mind a Power of Attorney (POA) or even an Enduring Power of Attorney (EPOA. Some people may have no one they can trust, at which point the Public Guardian may get involved. Or they may be taken advantage of by a person who professes to care for them and do kind things but is really only after what they can get out of the relationship.
A Cautionary Story
My dad first signed a will in 2019. Dad was 85 years old then and he should’ve had made a will a long time before.
(I think it was possibly a ploy to get me to go out there and visit. I made arrangements to go out there months in advance and when the day came to leave, my husband Carl had just been admitted to the hospital with pneumonia yet again (a fun side effect of terminal cancer). Carl and my children encouraged me to go anyway, my kids said they would make sure Carl was okay.)
At one point Dad balked at signing it. I bluntly told him that I had left my dying husband in the hospital to come out there at Dad’s request because he wanted to get a will signed. I said if this did not happen on this trip, that I likely would not be coming back, ever. He signed it. We used one of those internet will kits and had two people who knew him well to witness his signature.
I was also put on one of Dad’s bank accounts so I could pay his bills online, order groceries, etc. (I tried to get Dad to sign up for Direct deposit of his government cheques but he wanted the cheques in his hand even though he was not able to pick up his mail or deposit the cheques himself, someone else had to do it.)
A few years later, Dad signed an Enduring Power of Attorney (EPOA). Unlike a regular Power of Attorney (POA), it did not come into effect until he could no longer make his own decisions.
This was a major accomplishment. I had noticed issues with Dad’s memory and knew that at some point he might not be capable of making his own decisions. It was important that he sign the EPOA while he still had the capacity.
Again, I used one of those internet forms. It only had a space for one witness signature instead of two. In my ignorance, I thought that was enough but I was wrong. If the person who was the sole signatory was a lawyer, it would’ve been fine.
(Dad decided to change his will at the same time, again we had the two witnesses.The witnesses knew him well. My lawyer has said the will is valid.)
Dad also let me know of his wishes for his medical care at that time.
Current Situation
Because I screwed up on the EPOA, I’ve had to retain a lawyer to go to court to get a Committeeship ( in Alberta it is called being a trustee.). I only had one signature on the EPOA instead of two. If the one signature had been done by a lawyer, all would have been well. This is costing time and money.
A sticking point in this process has been getting doctor’s affidavits of Dad’s capacity assessment. Normally the family doctor would do this but Dad never had one. Dad is suspicious of the medical profession and hates doctors; he had not seen one in decades.
The paperwork is in place, now all of the interested parties have to be served. Then, we wait to see if anybody objects to me taking care of Dad’s affairs.
This could have been avoided if I had done it properly but we live and learn. Hopefully others can learn from my mistake.
Why Exrtraordinary Life Saving Measures May Not be a Good Option For Everybody
CPR often means broken ribs espeecaily if the patient is frail. The older you are, the longer it takes to heal.
Intubation (being put on a ventilator) is often traumatic, again causing pain. Being vented by mouth usually means sedation unless they do a tracheostomy. Your chances of ever coming off of a ventilator decrease significantly as you age.
The after effects of being a on a ventilator and /or in the ICU can be very challenging.
My husband was on life support for a month when he was 63; he was in septic shock from the flu and was not expected to live. It took him months to learn to walk, talk and eat again. The post ICU syndrome came with a lot of fun symptoms; the brain fog alone frustrated him greatly. It took months before he could hold a cup of coffee without shaking. He had a lot of anxiety, worrying if he would end up on life support again every time he had a sniffle.
The Following is From the My Health Alberta Website
Your Care Instructions
A ventilator is a life-support machine that helps you breathe if you can no longer breathe on your own. The machine provides oxygen to your lungs through a tube. The tube enters your mouth and goes down your throat to your lungs. Most people on ventilators have to be fed through another tube that goes into the stomach.
You may feel that being on a ventilator would prevent a "natural" death or would keep you alive longer than necessary. Or you may feel that being on a ventilator would extend your life so you can do certain things, such as saying good-bye to loved ones.
The decision about whether to be on a ventilator is a personal one. Be sure to talk it over with your doctor and loved ones.
Why might you want to be on a ventilator?
You think you may be able to return to your normal activities.
You need help breathing because of a short illness or a problem that is not related to your terminal illness.
You would like more time to say good-bye.
You feel that there are more benefits than risks.
Why might you not want to be on a ventilator?
You have other long-term health problems.
You may not be able to return to your normal activities.
You want a calm, peaceful death. You do not want to spend the rest of your life on a ventilator.
You feel that there are more risks than benefits.
