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  • Writer's pictureJennie Griggs

Have a Loved One with Early Dementia? An Estate Plan is Essential!

Updated: Aug 21, 2019

[By Lauren Campbell Maxie]

It is all too common that we hear of delayed plans to establish or update one’s estate plan. Unfortunately, dementia can sneak in and make it difficult or impossible for one to update their estate plan. All too often we are approached by a son or daughter that is worried about the progressing dementia in a loved one.

Determining what medical expenses a spouse will have to pay.

In order for an individual to execute a validly enforceable Last Will and Testament one must possess “testamentary capacity.” Essentially, the individual must be over 18 years of age, and to be able to understand the following items:

1. the nature and extent of his or her property,

2. the natural objects of his or her bounty,

3. the disposition that he or she is making of that property, and must also be capable of; and

4. relating these elements to one another and forming an orderly desire regarding the disposition of the property.

Unfortunately, as dementia progresses one may lose the ability to understand these items. As such, it is incredibly important to discuss establishing or updating an estate plan with a loved one before it is too late.

If one fails to establish an estate plan, then the State of North Carolina’s intestate statutes establish a plan for an individual but the terms set forth in the statutes commonly do not correlate with someone’s wishes. Additionally, without a health care power of attorney and a durable power of attorney for financial matters loved ones will have to seek guardianship over their loved one which can be an expensive and upsetting process. Taking actions proactively to establish an estate plan can allow one to maintain control over how their estate plan is established and who shall serve as his or her agent in the event of incapacity.

Do I have to pay my spouse’s medical bills?

In our administration practice one of the most common questions we receive is what bills have to be paid by a surviving spouse after their spouse has passed away. Most people know they are responsible for the debts of a spouse if he or she has co-signed on a debt or if he or she has signed as a guarantor. What most people don’t know is that a spouse can be held responsible for the payment of medical bills of another spouse under the Doctrine of Necessities.

Essentially, a medical institution may sue a spouse of the treated spouse that owes them payment if the medical bills were necessary for the health and well-being of the treated spouse and two individuals were married and not separated at the time the medical bills were provided. As such, even if the estate is insolvent a surviving spouse may still be required to pay the medical bills of their deceased spouse. There are certainly more intricate items to consider when fully evaluating a claim of a medical institution but this is an important item to be aware of when looking at the priority of claims to pay after the passing of a loved one.

Blog provided by Elder Law Attorney Lauren Campbell Maxie at




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