Financial and Legal Matters

Financial and Legal Matters

    Dementia is a degenerative disease, which means that the symptoms will become worse over time, thus advance planning is favored. Advance health care planning often raises some important legal and financial issues for the future which includes preferred priorities of care, discussed by the person themselves while they still have the capacity to make decisions together with the family and caregivers. It is important to seek legal consult to assist the patient, relatives and caregivers with regards to these matters.

    A patient diagnosed with dementia qualifies as an incompetent under the definition of the law on guardianship. (Rule 92, Sec 2, Revised Rules of Court) Any relatives, friends or other person in behalf of the incompetent may file a petition before the court to be appointed as her guardian. (Rule 93, Sec 1, Revised Rules of Court) The appointed judicial guardian acts as the administrator and manager of the properties and affairs of the ward. The general duties and responsibilities of a guardian are likewise laid down under Rule 96 of the Revised Rules of Court which includes among others: payment of the ward’s debts, settling of her accounts, collecting debts, rendering an inventory of the ward’s estate, appearing in court in actions for the ward, and other duties specified by the said rule.

    Basically, a judicial guardian is a competent person appointed by the court over the person and/or properties of the incompetent to represent the latter in all of his/her civil acts and transactions. For more information on the law of guardianship, kindly refer to Rules 92-97, Revised Rules of Court.

     Advance directives for financial and estate management must be created while the person with dementia still can make decisions. As mentioned earlier, it would be best to have a guardian appointed by the court. Another option is to have a Financial Power of Attorney to designate a person to make financial decisions on your behalf, however one must bear in mind that the Principal (the person who gives up the authority) must be mentally competent at the time of signing and a physician assessment should occur if there is any doubt of the Principal’s competence.

     Another legal document of worth mentioning is the will. A will, under article 783 of the civil code, indicates how a person’s assets and estate will be distributed upon death. The person creating the will is called the testator and the person named in the will who is assigned to implement the provisions is called the executor. In the Philippines, wills should be written in a language or dialect known to him and cannot be in any other form, i.e., audio or video recording. Moreover, the testator must be 18 years old and above, with a sound mind; it is not necessary that the testator be in full possession of all his reasoning faculties (Article 797 – 800, New Civil Code).

     Under the Civil Code, there are two kinds of wills which a testator may execute. The first kind is the ordinary or attested will, the execution of which is governed by Articles 804 to 809 of the New Civil Code, which requires your signature as the testator, together with the signature of at least three witnesses who shall attest the execution of the will, which then must be notarized. A holographic will on the other hand, requires that it should be entirely made in your handwriting which must also include the date of its execution and your signature without the need for witnesses in its execution.

     Health care advance directives enables one to document preferences with regards to treatment, care and end of life issues. A living willspecifically details what a person wishes to happen in case of a physical or mental disability or a major medical emergency. This includes cardiopulmonary resuscitation and do not resuscitate status. The living will must be signed by the person; witnesses who is not related by blood or marriage; not entitled to any portion of the state of the declarer upon death; not the attending physician; and must be personally known by the witness who believes the person as capable of making health-care decisions at the time the living well was signed.

     The living will must be notarized and would only be followed if the patient is diagnosed in writing by the attending physician to be in a terminal condition or in a permanent unconscious situation by two doctors, and where the application of life-sustaining treatments would serve only to artificially prolong the process of dying. Another option is to have a “Health Care Power of Attorney” to designate a family member or a trusted person to make medical decisions in your behalf in case you are no longer able to make them yourself. These preparations will spare your loved ones the mental, emotional and financial stress, considerably.