Elder Law: “Making Your Transitions Easier (3-Part Series) Part II: Legal Documentation and End-of-Life Planning”

Elder Law: “Making Your Transitions Easier (3-Part Series) Part II: Legal Documentation and End-of-Life Planning”

Elder Law Issues: Continuing with application of pilot training, the next part of the acronym, C-A-N, after Communicate is Aviate – in pilot speak, this means make sure your equipment is in order so you can fly straight and level. I translate “equipment” into financial, legal, and medical plans and documentation, and “flying straight and level” means those plans and documents allow you and your loved ones to maneuver through your life changes in the manner you choose to do so. By the way, pilots feel some urgency evaluating the attitude of their aircraft.  We should take our responsibility to plan and document seriously, too. Below are some basic legal planning documents you may wish to consider:

Basic Financial/Legal Planning and Documentation

• Wills  – The State in which you reside has a set of laws that guide them through the distribution of your estate when you pass away intestate (without a Will), but most people would rather decide for themselves what should happen to their assets and personal property.  A Will is how you tell the State how you choose to distribute your property.  Additionally, if you have a family, lack of direction from you costs them time and money because the State has to decide for you.
• Trusts are assets that are separated, controlled, and managed by one person (the Trustee), for the benefit of someone else (the Beneficiary), and they can be valuable tools for financial planning, asset protection, and support for minors and disabled adults who will continue to need care after your death. There are a number of types of trusts, and they can be executed at different times for use during and after your lifetime. Qualified attorneys and financial planners can advise you on whether or not a trust would serve your needs.
• Power of Attorney (POA) is another legal document that I would recommend for many people. This is a document that allows someone (the Principal) to appoint someone else (Attorney-in-Fact) to exercise certain powers on behalf of the Principal. Without this pre-planned documentation, those who need to make decisions for others who can no longer decide for themselves must usually resort to court appointed Guardianship and/or Conservatorship relationships.
• Guardianship is court authorized power to care for the physical needs of someone else (food, clothing, shelter, etc.) who cannot care for him/herself.
• Conservatorship is a similar court authorized power to care for the financial needs of someone else who cannot care for him/herself.
• Long-Term Care can be overwhelming for many people to navigate. Attorneys who specialize in public assistance and benefits (Elder Law attorneys, for example) and financial advisers can be helpful in planning for and understanding the options, rules, and processes for application and eligibility for Medical Assistance. Long-term care insurance is also becoming more common and is an important option to consider when planning for you and your family.
• Double-check your Beneficiary Designations to ensure that your current wishes are in line with your current beneficiaries. There is little one can do to resolve this when someone dies and forgets to change beneficiaries. One of the most common examples is forgetting to change beneficiaries after a divorce.
• Transfer on Death Deeds (TODD) are deeds that transfer property in a similar way to the way in which one would leave assets to a beneficiary upon your death. When you die, your TODD states to whom the property should be deeded and may avoid probate.
• Payable-on-Death (POD) is a way of creating a beneficiary for most bank accounts. Ask your bank for a form (they usually have their own). This will usually allow access to those funds faster than without a POD designation.  

Medical Planning and Documentation

• Health Care Directive is an important document for end-of-life planning. Whether or not you have diligently communicated with your family about your treatment choices and end-of-life concerns and wishes, a Health Care Directive is the only sure way of having those choices acknowledged and followed by someone you choose to make decisions for you (an Agent) when you no longer can. Don’t forget to copy and distribute to your appropriate family members and agents, doctors, and health care facilities and hospitals. Everyone over 18 should have one of these!
• POLST is an acronym for Physician Orders for Life Sustaining Treatment. This is a form you should fill out if you are suffering from a terminal illness and your end-of-life treatment choices need to be in “short-form” and quickly available for emergency professionals and other staff that may not be able to read and absorb your entire Health Care Directive in an emergency situation (like a visit to the emergency room in an ambulance). These directions are usually on brightly colored single (two-sided) sheets, signed by your physician and by you or your Agent, and include only basic information about treatment choices, like “do not resuscitate” or “do not give antibiotics,” for example. Only those who are terminally ill should consider one of these.

 ALL READERS:  This blog is not, nor shall it be deemed to be, legal advice or counsel. This blog does not create an attorney-client relationship with any reader.  It is designed to encourage thoughtful consideration of important legal issues with the expectation that readers will seek professional advice from a licensed attorney.