INTRODUCTION
Creating a plan for your future that addresses your financial, health and legal matters may not be the first thing you think about when faced with a diagnosis of Alzheimer’s or another form of dementia.
However, this is a critical step to ensure that your future needs are handled appropriately and in accordance with your wishes.
It is important that you start planning as soon as possible after a diagnosis of dementia or probable dementia. This is because the capability to make decisions for yourself may continue to deteriorate as the disease progresses. Early planning enables you to make decisions and communicate those decisions to the right people.
This document provides an outline of the key legal considerations post a dementia diagnosis and has been prepared for general informational purposes only. It is not intended to provide, and should not be relied on for, and does not constitute, legal advice. You should always consult your own trusted health care provider, lawyer or financial planner for advice about your personal situation.
- Why is legal planning important post-dementia diagnosis?
Legal planning helps ensure your wishes are followed as the disease progresses and makes it possible for others to make decisions on your behalf as your ability to make decision is impacted, i.e. when you no longer have the “Mental Capacity” to do so.
With proper legal planning, other people in your life, for example, your family members, friends and care givers are able to make decisions on your behalf that best reflect your own wishes. It will also help them know how best to support you.
- What does legal planning cover?
Legal planning typically covers:
1.Gathering and making list of all your personal, legal and financial records, reviewing and updating these records as necessary (refer to Appendix 1 for guidance)
2.Making arrangements for your finances and property as well as your assets and liabilities
3.Making arrangements for your future health care needs and preferences
4.Naming or authorizing another person to make decisions on your behalf in accordance with the arrangements for item (2) and (3) above.
The sooner the planning is done, the more likely you are able participate in the process. It may give you, your caregivers, friends and family members, the opportunity to prepare and determine the scope of what needs to be addressed and the time to manage what may potentially be complicated issues.
- How is legal planning typically done?
Typically, legal planning involves the following documents:
- Power of Attorney
Power of Attorney is a legal document that grants one individual the authority (known as a “Donee”) to act on behalf of another individual (known as the “Donor”). Through this arrangement, the Donor allows the Donee to act in his/her name in private and business matters.
A Lasting Power of Attorney, on the other hand, can give a Donee permanent authority to assist with decisions about the Donor’s finances, health and personal welfare, as required. A Lasting Power of Attorney will only come into effect if the Donor is deemed to have lost the “Mental Capacity” to make decisions for themselves.
However, Lasting Power of Attorney is currently not recognized in Malaysia. Section 5 of the Malaysian Power of Attorney Act 1949 (Act 424) states that a Power of Attorney duly registered and deposited with the High Court of Malaya is valid and shall continue to be in force until, among other things, where the donor “has been adjudged to be of unsound mind”. This means that the Power of Attorney is revoked when a Donor no longer has “Mental Capacity”.
- Will
Will is a legal document that describes how a person would like his or her property and other assets distributed or managed after they have passed on. The person who makes or executes the Will is called a “Testator”, and the individuals or organizations that receive assets from the Will are called “Beneficiaries”. Any property a person owns, including real estate, vehicles, bank accounts, and personal items, can be passed on to someone through his or her Will.
A Living Will, on the other hand, details a person’s wishes regarding their medical care in advance. It takes effect during the person’s lifetime and would be referred to at the time when the person is no longer capable of making or communicating his or her wishes and decisions – be it due to illness or mental impairment. This is different than:
- Lasting Power of Attorney, which allows the Donor to appoint a Donee to make decisions or carry out the Donor’s directions on the Donor’s behalf when he/she is unable to do so.
- Will, which takes effect upon the demise of the Testator.
There is, however, no legislation currently that specifically recognizes or governs the concept of Living Wills in Malaysia.
You should always consult your own legal and finance advisors regarding the type of legal document that would best protect your interest and serve your purpose in your personal circumstances.
- What does Mental Capacity mean in the context of legal planning?
“Mental Capacity” is the level of judgment and decision-making ability needed to sign official documents or to make medical and financial decisions. This refers to one’s ability to understand and appreciate the consequences of one’s actions and make rational decisions. “Mental Capacity” can change over time and does have an effect in later stages of dementia.
This is why it is important to consult your own legal and finance advisors during the early stage of diagnosis to prepare for legal planning. You are also encouraged to keep your important papers and copies of legal documents in a safe location. Progressively check to see if there is anything new to add or be reviewed or updated. Tell a trusted family member or friend where you keep all your important documents.
- What should I do if I have doubts about my Mental Capacity to sign legal documents?
You should always consult your own legal advisor and health care provider before you sign any legal documents.
APPENDIX 1
It is highly recommended that you get in order your personal, legal and financial records. Review and update these documents as needed. Ensure that all your important documents, including those in soft copies, can be located easily.
This can make it easier for someone who is helping you manage your affairs, or who might be managing them in the future.
Here is a list of examples of important records which you need to get organized :
Personal / Legal Records
- Birth Certificate
- Identity Card
- Passport
- Driving License
- Marriage Certificate
- Names and addresses of spouse and children
- Employers and dates of employment
- Names and phone numbers of close friends, relatives, doctors, lawyers, and financial advisors
- Education / Professional Qualification Certificates
- Life and Health Insurance Policies
- List of Medications
- Will
- Trust
Financial Records
- Sources of income and assets
- Employee’s Provident Fund (EPF) details
- Social Security Organization (SOCSO) details
- Names of your banks and account numbers
- Investment income (stocks, bonds, property) and stockbrokers’ names and contact details
- Copy of most recent income tax returns
- Liabilities – what is owed, to whom, and when payments are due
- Mortgage / rent payment
- Property title and registration
- Vehicle registration
- Credit and debit card details
- Safe deposit box and key