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Legal See the chapters on CAREGIVING, SAFETY and TRANSPORTATION for more detail on providing help. Sometimes discussing financial matters can be particularly stressful to senior people. Unless there is a crisis or rapid deterioration you have no need to rush this issue if you have taken the preparatory first step - i.e., Durable Power of Attorney. This can provide a level of assurance for all involved. Often a good way to approach this subject is to simply explain that you want to be prepared in the event of a crisis. You might use this guide as a way to open conversations/communications with the folks. Share it with them and ask for their input. PLEASE NOTE: This guide is not intended to be the "All inclusive answer to everything". If it is necessary and maybe to make them feel at ease, you might need to see a financial counselor together. Another way would be to invite a financial planner to meet at Mom/Dad's house with or without you being immediately present. This is practical, since most important documents are kept at home and can easily be referenced. As you see in this section, there is a substantial amount of information to be aware of. By taking this affirmative step in talking to the folks, you are demonstrating a practical approach in taking responsibility. Realistically speaking, it is not likely that you would have just one talk with your parents regarding the issues of their care, well being, legal and estate matters. Under circumstances with some level of family communication, these issues will come up over a period of time. In a practical sense, the "talk" is really communication spread comfortably over months and years. In any event, if you haven't already done so, you must begin this communication, the dialogue "the talk". Procrastination is in no one's best interest here. For everyone's emotional (and financial) well being, assess, plan and organize. Back to the Top
ESTATE PLANNING Back to the Top
If you want or need to check an attorney's bar membership check with the State Bar Association of the appropriate state. You can also get referral assistance from ELDERCARE 1 800 677-1116 As you get into Elder Law and discussions with Mom/Dad you will see there are basic issues and instruments which you will be involved with. The issues are related to the folks' legal, financial and health affairs. The instruments used commonly are;
Sometimes these terms will be called other things but the concepts are generally the same. NOTE: Good sources for learning more about ELDER LAW and other ways of looking out for the folks.
ELDERCARE LOCATOR - 1 800 677-1116
Administration on Aging - www.aoa.gov
American Assoc. of Retired People - www.aarp.org
Nolo Press - www.nolopress.com
Do your folks have a will? Do you have a will? Particularly where there are children (adult or otherwise) it is important to have a document that distributes property after death. A Will dictates how an individual wishes their property disposed of, "who gets what?" A Will should include: To be valid a Will must be prepared according to state law. In listing the beneficiaries, contingent beneficiaries should also be named in the event the primary beneficiary does not survive the Will maker. The Will maker must be of "sound mind" although this term is vague and can be debated. This can be ameliorated by having a signed statement from a physician the day the will is signed that Dad/Mom is of sound mind.
Most likely the folks will have a form of Reciprocal Will meaning that if one passes before the other, the survivor inherits the estate. In Estate Planning considerations should be given to the impact of the surviving parent. Will Mom be financially prepared or encumbered even if she does have a home? Funeral and medical expenses, outstanding debts, bills and taxes are some things to be prepared for. Probate is the legal establishment of the validity of a will. The word probate comes from the Latin word "probatum" or something proved. This is the court proceeding that will clear title of property passing from the deceased to those named in a will. Probate can also be the court judgment in cases of intestacy (no Will) as to whom the property will be disbursed to. Probate takes place in a city/county court where your folks have their legal address. Probate can take six months or more depending on the complexities involved. Probate is a public notice process. This can be either good news or bad news depending on whether Mom/Dad had financial or business dealings by which creditors might be able to make a claim against the estate.
With a Will and subsequent public legal notice creditors must come forward with claims in a specified period of time, usually six months. This time limit for claims may not apply to Trusts (varies state to state). While the Trust is private the public notice of a Will can announce your parent's passing to someone who maybe should not know.
Details in the law vary from state to state, but the defining feature of community property is this: Irregardless of the name(s) on title documents, ownership of (almost) all property - including income - acquired during marriage by either spouse is automatically split, so that each spouse owns a separate, undivided one-half interest. In most Western States the defining law is referred to as Community Property whereas the rest of the States will see this as Common Law. TRUSTS If the folks have a Trust established it is likely one that is commonly referred to as a Revocable Living Trust. Very much like a Will, the Revocable Living Trust allows one to direct how ones property will be distributed after death. The Trust, unlike the Will allows property to pass to beneficiaries without going through probate. NOTE: Remember: avoiding Probate does not mean avoiding taxes. A trust is created by the Trustor with instructions to a Trustee to maintain or distribute property to Beneficiaries. This agreement stipulates the terms and events which will trigger the execution of the Trust. The trustee can be the family attorney, a family member, friend or business associate. It is going to be someone that Mom/Dad trusts. The Revocable Living Trust is effective during the lifetime of the Trustor. This Trust can be set up so that it can be changed during the Trustors lifetime. Hence the term revocable. A trust may also be structured so that it may not be changed, which means that it is Irrevocable. The trust does not take effect until it is funded, that is the folks have transferred their property to the trust. Property left in Mom/Dad's name can be subject to probate upon their death. Something that is becoming more common is the use of a Living Trust with a "pour-over" Will. This allows for assets acquired after the trust was made to be poured over into the Trust at death. Again, the laws vary in different states. Because each type of will and trust has a different purpose and design, it is advised that you consult with an attorney familiar with the laws of the state in which the folks reside. If you should need a family law attorney near your folks check the ELDERCARE LOCATOR 1 800 677-1116 for references.
The importance of a will or trust cannot be over-emphasized! When a person dies and leaves no will [or trust] this is called dying Intestate. The law of each state determines who will receive the estate of the deceased. Generally Intestacy laws will provide for most property, real and otherwise, to pass to the deceased's closest living relatives. Sometimes this can be complicated due to marriages and surviving kin. The subject may come up regarding the cost of Wills and Trusts. If an estate is expected to be even of modest value ($20,000 or more) then the cost of a will is worth it. A Holographic Will (see below) will cost nothing if this device will work. Most attorneys generally charge $200 - $1000 depending on the complexity. An ELDER LAW attorney may be available in your folks' community that will charge little if anything. Trusts generally will cost more to prepare and there may be costs associated with funding and maintaining the trust. Wills on the other hand cost to probate. It can be worth the time and effort to compare costs. AARP has some comparison figures at www.aarp.org If the folks are of very modest means having their estate in a Trust may affect their ability to qualify for MEDICAID. It is recommended that you and/or the folks check with an attorney with current knowledge of Medicaid rules. This is especially important when assets and property are involved since the laws are complicated and change frequently.
NOTE: A very problematic and sad situation is gaining more public attention. There are groups that prey on the elderly by aggressively selling living trusts. This type of "estate planning" may pose serious financial problems for your family. BE AWARE and get information. ELDER FRAUD ABUSE is discussed in CAREGIVING. Do your parents have a Durable Power of Attorney prepared - signed and notarized? For that matter, do you? Consider this. Suppose something suddenly happened to the folks where they became incapacitated - in a coma for example? Who has the legal authority to access their finances? Someone may need the ability to write checks on their behalf to pay bills and expenses. Every adult should have a signed (and notarized) Durable Power of Attorney. This is one of the items on your FIRST THING TO DO LIST found in the INTRODUCTION. Get this done and out of the way, for both you and the folks. You will have a great sense of accomplishment and it takes very little effort. The Durable Power of Attorney can be a simple document, which must be signed in front of and signed by a Notary Public or two witnesses. This written document is generally preferred over the Living Will in that it is more flexible. This document authorizes an individual to handle specific financial, medical or other personal transactions requiring legal or financial action of one sort or another. Powers of Attorney will vary depending on the state of residency. These legal instruments given to the designated person the agent or "attorney in fact" can have broad powers to sell and encumber property or the scope of power can be very limited. Historically the POA has been a good instrument of authority. Standard 2-page forms can be picked up a stationary stores and executed in front of a notary or two witnesses.
There can be drawbacks with the "form" POA. Financial institutions have recently begun to see "self serving" or highly suspicious POA's that they have trouble legitimately honoring due to the risk of claims against them. Banks, insurance companies, investment brokers and even the IRS are all beginning to demand that their own individual forms be used unless there is a specific provision pertaining to that particular institution in the POA. Most often the store bought 2-page form does not have these specifics in them, consequently when the POA is most critically needed - it might be ineffective. A Durable POA becomes valid the moment it is signed. This might make some people uncomfortable. A Springing Power of Attorney begins at a specified time. This might be when the principal reaches a certain medical point or condition (i.e. if a parent were to fall into a coma) the designate [designated person] would be the one to make specified decisions laid out previously by Mom/Dad.
As noted the POA can be broad and general and almost unlimited in its authority, Too board and general and not specific enough to particulars dilutes its effectiveness. Depending on the intent of the principal - Mom/Dad - and what their wishes are, it might be a good idea to have a POA prepared with an attorney. "HONOR THY MOTHER AND FATHER" Medical decisions will be made by capable and informed persons in consultation with their physicians. A person has the legal right to make decisions about their body and their medical care. This is Informed Consent. Of course there are exceptions, but in most cases our society recognizes individual freedoms and self-determination. There may be times when an individual's choice or decision-making ability are not compatible with what others would deem to be in their best interest. For example, moving Dad into a nursing facility for safety or health reasons while he is forced to resign his independence. This then, may raise ethical concerns between what a parent wants and what you believe is best for them.
If a time should come when your parent cannot manage their financial affairs or if they cannot physically care for themselves, you or a sibling may need legal authorization to act on their behalf. This can be a very difficult, complicated and awkward family matter to address. Conservatorship and/or Guardianship are legal terms in which a conservator or guardian is appointed by the court to be responsible for the physical and/or financial affairs of another. In the event a parent is unable to attend to his/her financial affairs or they cannot physically care for themselves you might need legal authorization to act on their behalf. Laws and the degree of control concerning guardianship will vary from state to state. Each state allows the courts to establish the degree of control. A limited guardianship for example, allows a guardian to act only specifically to a specific area that corresponds to that part of a parent's life where a parent is no longer able to function. This is generally preferred to an unlimited guardianship wherein the parent would have no control over any facet of their life, property, personal, medical and so forth. This is a severe move and should be considered only when other options have been exhausted. The responsibility can be substantial and there is the possibility of acrimony within the family.
NOTE: Because Guardianship requires a legal proceeding in court a durable power of attorney will be an easier and more desirable means of attending to the folks' legal and medical matters. Planning ahead can be very beneficial.
NOTE: Conservatorship is required if the person is in a locked facility. Every individual and every circumstance are going to be unique. It is for this reason that it has been suggested here to develop communication with the folks. It is likely you may be faced with some ethical issues and concerns. In a variety of instances it will be noted that there are no hard-and-fast rules to follow. We have seen that Informed Consent is the ability of an adult individual to make decisions concerning their own well being. However a physician might decide that a person has become "incapable" about decisions concerning their well being. If this occurs, someone else will have to make decisions concerning medical care. This person will need to have a Durable Power of Attorney for Health Care. Often it is not an either/or situation. There is a process called a "sliding scale" that will allow your parent some autonomy. There may be some areas that Dad can be allowed to maintain his decision-making, such as financial matters but not in medical concerns. This "decision specific" capacity allows the patient to maintain some control of their lives. Decision-making as a mental process is not static in human beings. We have all made poor decisions… perhaps at a time of high stress or under the influence of alcohol or drugs. Of course we like to think that our decisions are right most of the time. Keep in mind that seniors are people who, while perhaps having made good decisions all of their lives, may now be in a circumstance that affects their capacity to make sound decisions. This can occur due to medications or the side effects of disease. It is also important to remember that a person's ability to make medical decisions is that they realize they have choices to make concerning the type of care they choose. This includes various options, the consequences of each option and the benefits and risks associated with each. If a parent becomes incapable of decision making, someone will have to make decisions on their behalf. This "Surrogate Decision Making" is a very good reason for having that "talk". The surrogate decision-maker is usually a family member or a trusted friend or attorney.
The folks may have very definite ideas of how they wish to be treated and about medical decisions made for them in the event they become incapable. Their wishes may be in the form of advance directives, living wills and durable powers of attorney for health care and/or financial matters. ADVANCE MEDICAL DIRECTIVES - (AMD)
Whenever possible it is a good idea for a person, particularly a senior, to have an Advance Medical Directive. A doctor will respect decisions made by a person when those decisions were properly expressed while capable. This is preferable to the physician (legally and ethically) rather than simply following wishes or the "I guess/think this is what Dad would have wanted" of family members or other caregivers. Planning for Disability & Incapacity An AMD will stipulate who is to make medical decisions for your folks if one or both of them is unable to. Ideally there may be one able parent to look after the other but this is not always the case. An AMD will state who is to make such decisions and under what circumstances. It can also state who will manage the finances, visit at the hospital and care for any children and/or pets. AMDs are either a Living Will or a Durable Power of Attorney for Health Care. Every state recognizes these AMDs but the laws to vary form state to state in regard to how they are drawn up and executed. With either of these documents they are only valid when the parent does not have the capacity to make critical decisions. That "talk" you had might have covered advance medical directives. It is a good idea to have something in writing since most states have ruled that oral directives may be challenged. Also there may be others who claim they are the one with the oral directive. Therefore, in respect to your parents, you should have them prepare explicit written statements that clearly define their wishes. AMDs can be drawn up with the family attorney at the time the family is preparing its other estate plans. An AMD has no specific format. In fact it should be tailored to meet the specific requests and believes of your parent - medical, ethical and religious. Every state has laws that outline and define the legal context and content of an AMD. Most states have sample forms that can be tailored to suit a parent's wishes and to different situations and contingencies that may arise. Local ELDER LAW agencies have forms. Sample forms are also available to members of AARP. The procedures for executing or carrying out the directives of the AMD differ from state to state. The notarized signature of the parent and (ideally) two witnesses is required. There should be a clause that the witnesses know Mom/ Dad, that the parent is of sound mind and that what is contained in the AMD is in fact their wishes. However the AMD is written it should contain fundamental powers that give the "agent" the power to act at the appropriate time. This is the ability to refuse, withdraw or consent to all types of medical, medication or mechanical treatments. This can include artificial respiration and cardiopulmonary resuscitation (CPR). When an AMD is drawn up it is a good idea to have several signed copies prepared. These can be distributed to the appropriate designates such as doctors, and others close to the family. Some states are reviewing regulations regarding the appropriate measures ambulance crews may or may not undertake. Presently these service providers are required by policy or law to administer life support and get the patient to a hospital. Check the current regulations in your parents' state and balance with the directives of the folk's AMD.
The agent may have ability to authorize admission or discharge to hospitals or any other care/nursing facility. The agent should have authorization for the administering of medication for the relieve of pain even if such treatment may cause other medical problems. The agent should be authorized to make contracts on the parents behalf for health care services and related support. Most importantly an AMD should have a clause addressing the parents wishes pertaining to "life-sustaining treatment". This should state what they do and do not want! This should be discussed with Mom/Dad because someone other than them may have to make a very sensitive and emotional decision that involves expected length and quality of life balanced with the expense involved. Most people have some ideas of preferences when it comes to treatments they may or may not want to have. Often they have not put it forth in a documented form. This is why it is a very important to have an AMD. There can be problems with advance directives. For example, people may change their minds or the rapidly changing medical advances may change circumstances. This is where a good understanding of your parents philosophies of life, death and quality of life are important, so you can make decisions based on what they would want as opposed to what you would want under the same circumstances.
Ongoing communication between you, your parent and their doctor can provide the best result regarding patient wishes. Often phrases such as heroic and extraordinary care are used concerning life-sustaining treatments. These terms can be ambiguous, particularly when it comes to specific treatment and thus should be avoided. Decisions concerning life-sustaining treatment should be weighed by the benefits and disadvantages provided to the individual patient and not necessarily by the form of treatment. Durable Power of Attorney for Health Care
A Durable Power of Attorney for Health Care is accepted as the most desirable form of an Advance Directive. This instrument allows an individual to designate a surrogate decision-maker to make medical decisions even if the patient, (i.e., your parent,) were to become incapacitated. Unlike the living will, which applies only to life or death concerns, the Durable Power of Attorney for Health Care allows the appointee to authorize the utilization of the medical wishes of the principal.
Most states now recognize living wills. This is a document that applies only to a terminal illness, not stroke, severe dementia or even a persistent vegetative state. The Living Will allows doctors to withdraw or withhold life-sustaining treatment in cases of terminal illness. Immunity is granted to the caregiver and/or physician. A problem is that each state has statutes that define the process of decision-making concerning life ending procedures. It would be good to consider reviewing the laws concerning Living Wills in the state your folks reside in. A Holographic Will, or Handwritten Will is a commonly used device by older people in hospitals or anyone who just wishes to leave a record of their wishes in the event of their demise. The Holographic will is not notarized. Also it is written on plain paper, not on a form or letterhead. A Holographic Will must be written entirely by hand (no typing or computer generated document) and must be signed and dated by the person writing the Will and stating that this document is, in fact, their Will. Witnessed Wills are documents that are prepared in the presence of two competent adult witnesses. These Wills may be written by another person and may be typed. The Testator (person making the Will) should make a statement that this document is, in fact, their Will. The witnesses do not need to know the contents of the Will.
Each state has different guidelines in determining what constitutes a will. If your parent lives in another state, it may be advised to review guidelines with a local attorney. NOTE: Some states recognize Holographic Wills and others do not. For questions about wills check with yours or the folk's attorney. Shakespeare used the term "the journey's end" because it works as well as any in a spiritual, familial, dignified way. Every individual holds recollections, family snapshots of their unique life. What a parent means in ones life is unique to every individual. The day of passing will be emotional for the surviving kin. "A debt we all must pay" - Euripides, will arrive in an instant or it will linger, likely with suffering and pain, for some time. Nonetheless this parting will be difficult. Your parent has been the source of your own being and their passing yields insight into our own mortality.
Sudden death such as a heart attack often brings disbelief, a sense of "unfairness" and of course grief. A long-term condition may lessen the sudden shock of death but nonetheless obligates us to focus on personal and family issues. Life-Sustaining Treatments As noted earlier, advance directives are a means of how a person may decide in advance how they wish to be treated concerning the final period of their lives. Often words such as "extraordinary", "heroic" or "quality of life" are brought up in discussion with regard to life-sustaining treatments. It should be noted that these terms can often be ambiguous and all too often none too specific. Medical technology continues to advance and requires of all of us a reevaluation of what is heroic. For example, if a parent is in a condition of suffering that could be eased by means of recent mechanical or technical treatments, the concern might then become one of "quality of life". For a surrogate decision -maker this may pose deep ethical, philosophical, religious and personal problems. Conversely, simple procedures such as cardiopulmonary resuscitation (CPR) can be an effective treatment of an unexpected sudden death, but only a small percentage of persons over age 70 survive discharge from a hospital after CPR. A "do not resuscitate" (D.N.R.) order almost always refers to CPR, however other treatments may be given.
* Often it may not be practical or possible to discuss these kinds of decisions with the folks. It may be that one feels uncomfortable in talking about this issue with one's parents directly. There may be, however, some implied yet meaningful thoughts you might share with Mom or Dad. "Pop, have you had explicit discussions with your doctor regarding do-not-resuscitate orders?" is a question, expressed in suitable conversation that can denote your care and concern while showing that you understand and respect their wishes. LIST(S) OF CRITICAL LEGAL/FINANCIAL DOCUMENTS These lists while thorough are NOT complete. Every individual and family has unique circumstances therefore every list will be different and may contain points not listed here. Additionally lists will change from time to time. Often it is difficult for families to keep lists such as this current and accessible to family members separated by distance. TheKeysPlease has made special arrangements with ________(Brand X company) to provide families with the TKP E-Vaulting™(TM) service. This very secure online service allows families to store, read and amend family archival material so that it can be kept currents and immediately accessible.
NOTE: This list is for the care giving efforts for your folks. Start to compile a list of your own personal information for those who will someday provide care to you.
Include name(s) of broker(s) . Back to the Top
If the folks have/had a business it would be good to establish separate document listing(s) for business and tax purposes if necessary.
List of valuable personal property. Make sure your family knows if any family furniture, artwork, or other personal property items have a special or historical value (emotional or financial); consider the possibility that the family members who already know about these things may not outlive you.
Other Helpful Sources of Information Social Security: Every person should request a "Personal Earnings and Benefit Estimate Statement" at least once every three years, to confirm accurate recording of your earnings and to help predict your future benefits. Call Social Security at 1 800 772-1213 to request a Personal Earnings and Benefit Estimate Statement (PEBES) or access at www.ssa.gov Employee Benefits: If you work for a large company or government agency, check with the personnel office for assistance and information about benefits and retirement options. This is discussed is greater detail in the FINANCES Chapter. Books: Check out your local library for many helpful books on estate planning. For other good resource material check the yellow pages for "Senior/adult" libraries located in you community. The local council of the Administration on Aging can also direct you to Information and Referral (I&R) agencies. To locate call ELDERCARE at 1 800 677-1116 LEGAL HELP
202-332-2500 www.nclc.org - National Consumer Law Center 617/523-8010 Credit Reporting: To learn how to obtain a copy of your credit report, call TRWExperian (1-800-831-5614), Equifax (800-685-1111), and/or TransUnion (800-680-7289). Long-Term Care: There are numerous sources of good information on this subject. Evaluate folks existing insurance plans. Contact MEDICARE for the Medicare & You handbook at 1 800 318-2596 or check out www.medicare.gov Also check with local council on aging and senior resources centers. See INSURANCE & MEDICARE and FINANCIAL Chapters. Choosing an Attorney: Call the Lawyer's Referral Service of your local county bar association (see the "Attorney Referral" section of the Yellow Pages). The ELDERCARE LOCATOR 1 800 677-1116 can assist with help in locating an Elder Law attorney in you folks area.
If You Can't Afford an Attorney: There are free and low-cost legal programs in the county/state in which your folks reside. The ELDERCARE LOCATOR can refer you to state and local agencies.
RESOURCES Long Term Care Planning American Association of Retired Persons (AARP) "A Guide to Long Term Care Insurance" 800-424-3410 or www.aarp.org ELDERCARE LOCATOR 1 800 677-1116 For information on long term care for seniors anywhere in the country. They will provide information on local agencies that will assist and the contacts for state commissions on aging and commissions on insurance. Local libraries. Periodicals such as Consumer Reports, Kiplinger's, etc Also see FINANCES, CAREGIVING, HOUSING and RESOURCES Chapters. DISCLAIMER: This guide is not intended or meant to be legal advice. This guide and various chapters are intended only as informational and educational background references. Laws governing legal, financial and medical matters vary from state to state. Always consult with an attorney when dealing with such matters.
The Keys Please™ - TKP Dec 2001 |