Putting your affairs in order
Planning for tragedy is an uncomfortable process. Many adults feel that creating legal documents is complex and expensive. Also, a misconception exists that these forms aren’t necessary until later in life. Yet, end-of-life documents allow all adults over the age of 18 to make firm decisions about what they want in the event of a health crisis or death. Without this information, loved ones are left in the dark facing wrenching decisions, potentially hefty legal bills and disputes to untangle.
Last Will and/or Living Trust
Why is a Last Will needed?
- A last will and testament tells the world who should receive which assets after death.
- Critical not just for the elderly, all parents with minor children need a will because it allows them to name guardians for those dependents.
Why is a Living Trust needed?
- Although it functions like a will, a living trust is private and allows an estate to forgo probate.
- It provides control of assets both during life and after death.
What are the consequences of not having a Last Will?
- Without a will, the state may impose a statutory scheme contrary to a client’s plans for distributing property.
- A judge of the probate court will decide how goods will be divided.
- Money intended for children may be sent somewhere else.
- Probate may be time consuming and costly.
“The will and/or living trust allows the individual to outline exactly how they want their estate distributed upon death. A properly drafted living trust can also provide certain tax protections, address remarriage issues that can arise after spouse #1 dies, avoids probate and the expensive guardianship process.” - Fred Haiman” – Attorney, Haiman & Hogue
Power of Attorney (Financial & Medical)
Why is a Power of Attorney needed?
- A power of attorney (POA) for finances allows a designated person to manage financial affairs, pay bills, sell property, contract for services, etc.
- In the event an elderly person becomes incapacitated unexpectedly, this living document ensures an advocate is thinking about his best interests.
What are the consequences of not having a Power of Attorney?
- Without a power of attorney, when a person becomes incapacitated, relatives will have to go to court to get the authority to take care of finances and health care.
- These living documents are important for anyone over the age of 18. Once a child turns 18, his or her parents are legally cut off from making important decisions.
“The living documents allow you to appoint someone you trust to take care of you if you become ill, injured, disabled or incapacitated. The POA allows your agent, a person you trust, to take care of your finances, to handle anything that has to do with finances and financial institutions. The medical POA allows the person you appoint to fight for your medical treatment, if you are unable to speak for yourself.” – Haiman
Directives to Physicians
Why is a Directive to Physicians needed?
- Also known as an advance medical directive or living will, a directive to physicians details the type of care a person will receive if he becomes seriously ill or incapacitated.
- It names a chosen healthcare advocate who will ensure a person’s end-of-life wishes are followed.
What are the consequences of not having an Advanced Medical Directive?
- Without a directive to physicians, a doctor will be responsible for making medical decisions on a person’s behalf.
- This decision includes the choice of whether to take heroic measures to keep a person alive.
“The directive to physicians is the document where you decide, while you’re well, what you want done in the event that all medical treatments have failed, and the decision is whether or not to keep you on life support. You decide to pull your plug or not, and therefore that decision doesn’t fall on the shoulders of your loved ones.” – Haiman
Why is HIPAA Authorization needed?
- Even with a medical POA, all adults should have a HIPAA release.
- With this authorization, a hospital can give family members and parents updates about a patient’s medical condition in the event of an emergency.
What are the consequences of not having a HIPAA Authorization?
- Without a HIPAA release, family members will be prevented from receiving vital information.
- Current HIPAA law prevents medical professionals from releasing medical information, even to the spouse of a patient, without this release.
“The HIPAA authorization allows your family to get your medical information or medical records if they need to.” - Haiman
Declaration of Guardian in Case of Future Incapacitation
Why is a Declaration of Guardian needed?
- A declaration of guardian advises the court who a person wants to serve as his guardian in the event he is incapacitated.
- The guardian has the responsibility to provide care, supervision, and protection including clothing, food, medical care and shelter.
What are the consequences of not having a Declaration of Guardian?
- Without a declaration of guardian, court intervention is necessary to appoint someone to be a legal guardian.
- In addition, the guardian appointed by the court may replace the agents named in the financial and medical POA’s.
“The declaration of guardian in case of future incapacitation allows you to designate who you want to be your guardian in the event that you become disabled, permanently or long-term, to the point where you are completely unable to care for yourself. It also allows you to tell the court who you don’t want your guardian to be, in case there are troublemakers in the family or people you don’t want to burden.” - Haiman
This is an article adapted for use here from our 2021 Senior Resource Guide - Navigating Senior Life.