Elder Law Basics

The core issues in Elder Law revolve around how you can control your financial, legal and health affairs in the event that you become incapacitated. If you want to "get your affairs into order," you should consider drafting some important legal documents with the guidance of a lawyer specialized in family or elder law matters.

By preparing a set of documents, you can decide who will receive your assets when you die, and preserve your nest egg and make decisions if you become incapacitated. If you need long-term health care or suffer from a catastrophic illness, you may watch all of your savings "go out the window." These documents as a package will bring you a long way to protecting your assets from catastrophic loss and notifying your loved ones about your preferences regarding medical care.

These four documents form the foundation of good estate planning:

  1. Last Will and Testament
  2. Durable Power of Attorney
  3. Living Will
  4. Health Care Proxy (or Medical Power of Attorney)

1. Last Will and Testament

The Last Will and Testament is the only one of the four documents that you must prepare with the assistance of an attorney. The Last Will and Testament is your last opportunity to decide who gets your property when you pass away.

It should be drawn up by a lawyer and reviewed at least once every five years. When you review it, make sure that the people mentioned in the Last Will and Testament are still alive, available and the people you want to be named. The key people are: your heirs; your executor; your alternate executor; and your two witnesses. You should know where these people are because when you die, they must be located to attest 1) that they were physically present when you signed the document and 2) you were competent when you signed it. Witness affidavits should be attached to the Last Will and Testament.

The Last Will and Testament goes into effect when you die. That is, when the physician signs your death certificate. Until you are dead, your executor and heirs have no authority to act on your behalf. While you are alive, you make all of your financial, legal and medical decisions. But if something goes wrong and you are unable to make these decisions – you become incompetent – there are other legal documents that you can prepare to plan ahead.

2. Durable Power of Attorney

A Durable Power of Attorney is a written document that designates another person to act on one’s behalf when making legal or financial decisions. By designating someone to act in your behalf, you allow them to sign your name in the event you become incompetent. Your designee should be someone you closely trust and you should hold onto the document until it is necessary. However, you should tell your designee where the document is kept should it become necessary. Make sure that you provide for an alternate designee. The Durable Power of Attorney becomes especially important when planning asset transfers and when qualifying for Medicaid.

A Durable Power of Attorney is a relatively simple 2-sided form. You sign it before a notary and have him/her notarize it. Most states have their own form, which can be purchased at most stationery stores. Make sure that you have a Durable Power of Attorney form for each state in which you hold property.

The Last Will and Testament and Durable Power of Attorney documents deal with control over financial and legal matters. But how can you plan for (and help others plan for) your life, healthcare matters and destiny? You may have asked yourself this question: "If the only reason I am being kept alive is by machines, would I wish to continue to live that way?" You Last Will and Testament and Durable Power of Attorney can not help your loved ones decide that or act on it in the case you become incapacitated by a stroke, accident or Alzheimer’s Disease.

3. Living Will

A Living Will is another relatively simple 2-sided form that spells out how you feel about your medical destiny. The Living Will is limited to your wishes regarding life support systems only. A Living Will is important for another reason: in your state, your spouse may be legally and financially responsible for the cost of keeping you alive indefinitely with machines.

Your Living Will should be signed by you and two witnesses (who may be family members). You should choose as your witnesses two people who are aware of your wishes and the quality of life issues that are important to you. Several people should be given copies of your Living Will:

  1. Your children: Be aware that your wishes may not necessarily be the same as their wishes – you should try to avoid disagreements among your children by carefully spelling out your wishes in a Living Will;
  2. Your physician and HMO (if applicable): Have original copies of your Living Will made a part of your medical record so that it is clear to your health care providers what your wishes are.

But other types of medical issues that do not include life support may arise. For example, you also make decisions on which procedures or surgeries to have. Who will step in in those cases if you become incapacitated?

4. Health Care Proxy

A Health Care Proxy is often called a "Medical Power of Attorney" because it is a way to delegate your health care decision-making to another person in the event you become unable to make those decisions yourself. You should choose someone who you trust and someone who knows your wishes with regard to medical treatment and concerns.

A Health Care Proxy covers all types of medical decisions, including changing medications, experimental treatments, surgical procedures, changing physicians and transferring between facilities. One specific decision is not covered: tube feeding. You must specifically state that you do not want to be kept alive by artificial nutrition or hydration ("tube feeding"), or else you physician will make the decision for you.

Legal Disclaimer

This article is not intended to be legal advice. It provides an educational and informational background to the issues and documents involved in basic estate planning. As with all sensitive matters, you should consult your legal, financial and medical advisors whenever you make important decisions. Also be aware that laws may vary, sometimes considerably, from state to state and you should plan accordingly.

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