QUESTION:
My doctor has told me I have dementia. Is it too late for me to give a Power of Attorney or make a Representation Agreement or even a will?
ANSWER:
There are 70,000 people with dementia in B.C. today. This number is expected to increase significantly as the Baby Boomers continue to age.
It may be surprising to know that 10,000 of those people are under the age of 65. The World Health Organization has published statistics showing that between 2 per cent and 10 per cent of all cases of dementia start before the age of 65 and that the risk for dementia doubles every five years after age 65. Dementia is a broad term that covers specific types of dementia including Alzheimer’s, vascular dementia and Lewy body dementia.
Dementia is not the same as normal aging. Forgetfulness in today’s exceedingly busy, noisy and distracting world does not necessarily mean you have dementia. The Alzheimer Society of B.C. has a lot of useful information to educate the public on dementia, diagnosis, treatment options, brain health, etc. and is definitely worth investigating.
Most people understand that you have to be mentally competent to take certain legal actions and so they probably worry about what happens if they are diagnosed with dementia but have not appointed anyone to make financial decisions or health or personal decisions for them.
Going to see a lawyer to draw up these documents for you triggers the lawyer’s obligation to determine whether or not you are legally capable to execute the particular document. It may seem odd to the layperson but there are different tests for capacity for the different legal actions a person might wish to take.
For example, there are statutory tests of capacity for powers of attorney and representation agreements; there is a common law test of capacity for making a will. Other actions that someone with a diagnosis of dementia may wish to take could include making significant gifts, transferring property while they are still alive, making contracts, making a marriage or separation agreement, etc. These can all have slightly different tests of capacity that a lawyer will be aware of and will investigate before agreeing to act for you.
The bottom line is, even if you have a diagnosis of dementia, it may not be too late for you to do what it is you wish to do in organizing and arranging your affairs for the time when it is very clear that you cannot make any kind of decision for yourself.
For further information or assistance with wills, powers of attorney and representation agreements, we can help.