If You Fear Losing It

Los Angeles lawyer Marc Hankin watched as his father's Alzheimer's gradually robbed him of his ability to function and imposed devastating financial strains on his family. So Hankin, now 51, vowed that he would be ready in case he ever suffered any such disability. He has worked out a novel strategy to define when to activate his living trust--a document that designates people to manage his affairs if he no longer can. He has named his wife and his three closest friends to a competency committee, and granted them the power to declare him unfit and take control. Says Hankin: "I want to be protected before I start trying to eat grapes off the wallpaper."

That's a worry many boomers bear for themselves and their parents. And they worry about a range of mental incapacity that can begin far short of full-blown dementia. Your infirm father may no longer be capable of managing investments, but he may do fine balancing his checkbook. How will it be decided whether folks like him--and sooner or later, folks like us--have lost the capacity to drive a car or consent to surgery?

This question is growing more urgent now that octogenarians--nearly 30% of whom suffer from Alzheimer's--are the fastest growing segment of society. More Americans are doing advanced planning, with living trusts and durable powers of attorney for health and wealth, to spell out who should take over when they have lost capacity. Many would prefer to have others take charge of their affairs a little at a time as needed, rather than all at once. That's the intent of the customized conservatorship that Hankin designs for clients--facilitated by the terms of a pioneering state law that he helped craft.

But most states don't have laws as sophisticated as California's. And even in that state, anyone trying to protect his interests through a conservatorship must place great trust in the conservators whom he names--and in an unknown judge who will be assigned to oversee the conservators, and who often will rely on the testimony of doctors. Everyone involved faces difficult judgments about when someone is "losing it" and exactly how much of "it" he has lost.

Fourteen states have adopted some portion of the American Bar Association's Uniform Guardianship Act, which tries to define competency by functional abilities rather than a blanket medical diagnosis. These laws are designed to make it easier to define competency objectively. They also facilitate tailoring guardianships or conservatorships to specific needs. But such arrangements are still difficult to accomplish in practice. Erica Wood, associate staff director of the ABA's commission on legal problems of the elderly, says that in many cases, "the judge virtually gives over his or her decision to the doctor, who is usually not a specialist."

A few physicians use a "functional brain scan" to measure a general loss in function. "This is often useful in persuading the patient that something is wrong," says Dr. Stephen Read, a Los Angeles psychiatrist. But the scan can't make fine distinctions between, say, the ability to pay bills and trade stocks.