The reality is that we are living longer and that there is a chance that during our latter years of life we will live with our mental faculties diminished. In addition, there is an increasing number of brain injuries and illnesses due to accidents and degenerative diseases brought upon us from earlier years. What to do in this case? This is a question that we should all ask ourselves since it is something that one day will affect us.
We must decide what we should do while we our mental capacity is still perfect. Sometimes, such as in the case of Alzheimer sufferers, the patient is often unwilling to accept that he/she will lose their mental capacity. They remain confident that even with losses in their mental capacity they will still be able to govern themselves. However, this disease and other evolving diseases that progress rapidly, before the patient realises it they are in such a deteriorated mental state that they are not able to engage in any contract, Will or Power of Attorney: this becomes the time when others have to make decisions for him/her since he/she failed to do so when they were able to.
Ultimately, the moment to start deciding what to do when one no longer has the a good mental capacity is not when the first symptoms of the degenerative disease arise, these decisions should be made sooner, when one is in good health.
What tools does the Law offer me to protect me when I am incapacitated?
Here we will explain some legal instruments that can be useful to make a more bearable and dignified life for the incapacitated.
A Will is a document in which in anticipation of future death, one declares who will be heir to the assets of the testator. It is a document which comes into effect when the testator dies; in many cases the Will is known after several months following the death of the testator.
The testator CANNOT change their Will when they have lost their mental capacity, even when they have not been declared mentally incapacitated by a judge. If they had signed a Will in that condition it would be considered to be void.
In many instances, a Will is made at an early age without even thinking of the possibility that towards the end of our lives we could live a number of years with our mental capacity diminished.
In anticipating possible future incapacity, we would appoint executors of the estate to deprive of the inheritance those that did not take care of the testator. Often the testator is very limited due to the existing legitimates set by the law in favour of their children and therefore other instruments better suited in anticipation of incapacity should be thought of.
TESTAMENTO VITAL (LIVING WILL)
It is not a Will for their assets like the previous one, it is a document in which a person in anticipation of an eventual situation of becoming incapacitated manifests their wishes regarding their medical treatment and other aspects such as organ donation and maintaining their life through artificial means. They may also designate a person to interpret the document they are signing.
This document, which comes into effect when the incapacitated person cannot make their own decisions, helps the medical professionals and their families to make difficult decisions in critical moments, and rejects treatments that the sick person does not wish to receive. This document can help to avoid discussions in respect to medical treatment.
POWER OF ATTORNEY
A Power of Attorney granted to a person of confidence is a very important document to prevent future practical difficulties.
The Power of Attorney can be granted with the faculties that the grantor wishes, it could be a general Power of Attorney for all matters. The important aspect is that the Power of Attorney be granted with the limitations that the grantor wishes, these can also be only temporary.
One should also take into account that the Power of Attorney can only be granted when the grantor has sufficient mental capacity to do so. Once the grantor is mentally incapable they cannot grant one. At the time of granting the Power of Attorney they may state that the Power of Attorney should maintain its effects even if at a later date the grantor becomes mentally incapacitated (it is not necessary that a judge declares the person mentally incapacitated, it is sufficient when it is apparent). If the Power of Attorney is not drawn up with the appropriate attention this can be considered void when the grantor becomes incapacitated.
Another option is granting a Power of Attorney that only comes into effect in the case that the grantor becomes incapacitated. This is similar but not the same to the ENDURING POWER OF ATTORNEY.
There are many people that by not preventing their future situation they find themselves incapacitated to even handle the payment of the bills of a worthy nursing home where they are to spend the last years of their lives. It is not necessary that the Power of Attorney be granted in favour of a person of confidence or a friend, it can also be granted to an acquaintance or a professional.
INSTRUCTIONS IN THE CASE OF BEING DECLARED MENTALLY INCAPACITATED
When a person becomes mentally incapacitated they lose their rights to handle business matters and sign contracts. In order to protect the incapacitated person, the judge declares the state of incapacitation and names a tutor to represent him/her.
The affected person may also establish the instructions, prior to having lost their mental capacity, for when a judge designates a guardianship; for example who the guardian will be, if there should be a person or an institution that should oversee and control the guardian, if property should be sold to ensure a comfortable life at the time of becoming incapacitated, etc.
SETTING UP A PROVISION OF FUNDS IN THE EVENT OF FUTURE INCAPACITY
The setting up of a special fund to attend the needs of an incapacitated person can be an excellent instrument to alleviate and better the quality of life of those incapacitated to a certain degree, independently of whether they have been declared so by a judge; the persons that would benefit from this fund are those with a mental incapacity of 33% or more, or by a physical or sensory disability of 65% or more, both must be accredited by a regulated certificate.
There are very important fiscal benefits in constituting this fund or a specially protected wealth, which on the other hand any other fund would not have the rights to. The assets may be paid in by the incapacitated person or by third parties, family members or strangers.
The wealth will be managed according to the instructions of the constituents and within the margins of the law. To sell property a judicial authorisation is required like in the cases of the guardianship, while it is permitted that the judge softens this regime when they consider it to be appropriate when the circumstances in the specific case are convenient and in all cases without it being necessary to proceed to public auction.