disability, power of attorney

By Susan M. Graham, Certified Elder Law Attorney, Senior Edge Legal, Boise, Idaho

When was the last time you were asked if you are over 18?[1]

Why do I ask?  Every adult, even young adults, should sign a financial and health power of attorney.  The law states that a person becomes an adult once they reach age 18.  If you have children or grandchildren who are going off to school, it is important that they sign a financial power of attorney, a health power of attorney and a living will so someone has the legal authority to help out in an emergency.  If there is an accident, or a serious health issue, and no power of attorney is signed indicating who is to make decisions, it will be necessary for a parent, or someone else, to file a petition at court.  The petition will ask for a court order giving them the right to act on behalf of the incapacitated person.  This court proceeding, called a Conservatorship or Guardianship, is expensive and time consuming.

An easy, common sense solution for everyone age 18 and older is for each person to just sign the powers of attorney forms.   

We have them available for free on our website.

By Susan M. Graham, Certified Elder Law Attorney, Senior Edge Legal, Boise, Idaho

My 69-year-old Cousin in Seattle called on Sunday to update me with his bad news.  His mother died on Thursday, his daughter was engaged to an unemployed plumber who has 2 young children, and my Cousin was diagnosed with diabetes.  I asked if he had paperwork in effect to help address some of these issues and, like most people, he said “No.”   He did tell me he is “thinking about” doing something. 

Are you over 65 with no plan for your future? 

Do you want to be in charge of your life for the rest of your life? 

Wishing does not make it so.  Put a plan in place to make that happen.

What “parts” does your plan need to take the mystery out of tomorrow and replace it with confidence and security?   Everyone needs to start with the basics.  First, decide and sign papers that set out who will handle your health decisions and finances if you are unable to help yourself.   Most of us do not plan to die tomorrow, but it is a guarantee it will happen some day and you get to elect who gets all your things, from a ring to a bank account.  At a minimum, you need a Last Will and Testament to fully accomplish your plan of who inherits from you when you are gone.

Get started on your plan now.  How?

Contact your Certified Elder Law Attorney to discuss where you are, what you want to accomplish with the rest of your life, and discover the best strategy to get where you want to go.

Stop wishing, and do something NOW!  Take the steps to help yourself have a more secure future.

By Susan M. Graham, Certified Elder Law Attorney, Senior Edge Legal, Boise, Idaho

Are you thinking about your elderly parents' finances and beginning to worry what you should do to help them in an emergency?

Don't expect your parents to be thrilled at the idea of discussing their finances if they have not been open about this in the past.

If you are lucky, they may bring up the topic.  When my Cousin Kathie was age 90, she called me one day to say she was going to be kicked out of her retirement home because she was two months behind in her rent.  She asked me to call and check.  I looked into it and she was indeed behind in the rent.  Right then and there she asked that I take over her finances, which I did, and I continued to handle her finances until she died at the age of 99.

If you are not so lucky to be asked for your help, you need to start the discussion.  Be careful that you don't come on too strong, because it may be perceived that you want to take their money.  One way to start is to express your concern about your role in an emergency if they should die or worse, they become unable to handle their affairs due to old age, dementia or illness.  If they share the information about what they own, the approximate value, and where their records are located, that would be a huge first step.  If they don't, be patient.  You have opened the door a crack and they may call you later to share this information.

An alternative approach is to suggest you go to a meeting with them at their attorney's office to get independent, unbiased information on alternative ways to handle the health and financial emergencies worrying you.

Of course, if they say no, you are stuck.  You did your best.

If everything goes wrong that could go wrong and there is no plan in place when your parents become mentally or physically unable to handle their affairs, you have the option to go to Court to be appointed as their conservator [the one who handles their finances] and guardian [the one who makes the health and housing decisions].

What can you do?  Start the discussion so everyone is prepared for the bad days in life, death or the possibiity of becoming incompetent.  Good Luck!

By Susan M. Graham, Certified Elder Law Attorney, Senior Edge Legal, Boise, Idaho

This happened for the heiress of L'Oreal, a French cosmetics company.  Liliane Bettencourt is 89.  She and her daughter, Francoise Bettencourt-Meyers, have been suing one another for oyears.  A French Court found the mother to have failing mental healtlh and to be showing signs of dementia.  The Court then appointed the daughter as her mother's guardian.  Now, the daughter can control when her mother can travel and how her money will be managed.¹

Could this happen to you?

A simple way to avoid this is sign a financial power of attorney and health power of attorney stating who you want to make financial and health decisions for you if you are not able to care for yourself.  That will be a great first step.

_________________________

¹Heiress Loses L'Oreal Family Fight.  The Wall Street Journal, Page B8, October 18, 2011.

By:  Susan M. Graham, Certified Elder Law Attorney

Do you want to protect your independence, assets and your family?  There are many steps you can take to make it easier for you and your loved ones when the bad days happen:  death or becoming unable to handle your affairs due to illness.  I encourage you to consult with an attorney to discuss many of the following topics to see which will best fit your needs.

1.  Health Power of Attorney.  Signing this document permits the people you rely upon to talk with your doctor when you can't.

2.  Living Will.  If your death is near, you have 3 choices for your end-of-life medical care:  (a) use all the fancy machines to keep you going, (b) have nutrition and hydration with tubes, or (c) "let me go."  If you fail to sign a "Living Will," the legal and medical rules require that you be on "tubes" at a minimum.

3.  Last Will and Testament.  This document declares how you want your property distributed when you die, and if you have minor children, who will be the guardian.  After a death, the Will is filed with the Probate Court to start the administration of the decedent's estate.

4.  Revocable Trust.  This is an other way to arrange for the management of your assets should you be unable to do so due to illness or when you die.  This document usually allows you to avoid probate or going to court.

5.  Financial Power of Attorney.  This document identifies those people whom you selected to handle some of your finances if you are unable to do so because of illness.

6.  Funeral Arrangements.  Pre-planning your funeral is a gift to your family.  Making your arrangements will assure that you will have what you want and save your family from the worry and burden of such decisions at an impossible time.

7.  Pet Care.  You have the opportunity to write down who you want to be the caretaker for your pet when you are gone, recovering from an illness, or in a rest home.

8.  Beneficiary Designation.  Make certain that the beneficiary designation on all life insurance, annuities and retirement accounts, such as IRAs and a 401(k), match your current estate plan.

9.  Professional Advisors.  List those professionals who know about your affairs.  Include your attorney, accountant, insurance persons, doctors, dentist and others you rely on.

10.  Important Records.  Where do you keep your papers?  Who knows where to look?  Do they have a key, or can they get into your safe deposit box?

11.  Family Information.  Do you have a list of contact information for the family and friends who are important to you?  This information is helpful in an emergency.

12.  The Key to Your House.  Who has one?  Do they know whom to contact in an emergency?

13.  Driving Instructions.  If the time comes that it is no longer safe for you to drive, you can arrange ahead of time how to give up your car and provide for alternate transportation.

By:  Susan M. Graham, Certified Elder Law Attorney

This checklist includes important steps to help manage the estate of someone who has died.

1.  Follow the specific funeral and burial instructions left by the decedent.  Contact your local funeral home or mortuary for assistance in making or following through with any prearranged funeral plan.

2.  Arrange for the care of any persons who were dependent on the decedent, such as minor or disabled children, an elderly spouse or the decedent's elderly relatives.

3.  Arrange for the care of any pets of the decedent.

4.  Secure the residence.  You may want to have some trusted friend stay at the house.  Change the locks.

5.  Arrange to receive several copies of the death certificate - ten is not too many in most cases.

6.  Keep track of your time.  Get receipts for all out-of-pocket expenses you pay related to the estate administration so you can be reimbursed.

7.  Notify the decedent's friends, family members and work associates of the death.

8.  Call the attorney who set up the estate plan to make an appointment and learn how to administer the decedent's estate.  The attorney can tell you who is legally responsible under a Last Will and Testament, Trust, or even if no documents were prepared.  Locate the original Last Will and Tesatment or Trust to take to the attorney if those documents exist.  It is important to talk with an attorney prior to making any decisions relating to the administration of the estate.  Sometimes the wrong decision, taken hastily, can be costly.

9.  Do not distribute any personal property items such as rings, guns, china and other household things until you speak to an attorney.  If you distribute such items and you did not have the legal authority to do so, you may be personally liable to others.

10.  Update your own estate plan to be certain you and your family are protected.  It is important that a surviving spouse make changes now that their spouse has died.  In most situations, it will be necessary to prepare a new financial power of attorney, new health power of attorney and new Last Will and Testament or Trust to reflect any changes to your plan.

By:  Susan M. Graham, Certified Elder Law Attorney, The Graham Law Office, P.A., Boise, Idaho 83702

Driving in this country is important.  You can elect when and where you are going out.  Losing driving privileges can be distressing as it represents a milestone in life that a person is no longer physically able to drive and they lose some of their independence.

But there may come a time for each of us when it is no longer safe to drive, and we may not notice (or don't want to notice) when that day arrives.

I don't want to be like my client who drove down the street, scrapped 15 parked cars and clipped off every car's mirror.  He denied it was his fault.  "They all parked wrong."

What steps can we take to protect us from hurting ourselves or hitting some innocent person?

Plan ahead!

Authorize a trusted agent, perhaps your health care agent, to help make the decision that you are no longer capable of driving. Here is some suggested language to add to your health power of attorney.

My agent is authorized to tell my doctor that in my agent's opinion, I am a danger to others when I drive.  I realize that this might result in the loss of my driving license and driving privileges.  I also realize that I may not agree with my agent when my agent comes to this conclusion.  However, I do not want to endanger myself and I do not want to endanger others.  Therefore, I put this decision in my agent's hands, as I have the utmost trust and confidence in my agent.¹

____________________

¹Driving Miss Daisy, by Ruth A. Phelps, Trusts & Estates, July, 2011, pages 18-20.

By Joseph S. Karp, Florida Bar Certified Elder Law Attorney

The Alzheimer's Association and The National Institutes of Health yesterday announced a new approach to diagnosing Alzheimer's Disease. They are recommending inclusion of people with even mild memory loss that appears to be Alzheimer's-related. The rationale: Identifying the disease earlier will allow whatever any available treatments to be administered sooner, when they might be more effective.

Unfortunately, presently there is no preventive method and no cure. And that means the legal approach to the issue of Alzheimer’s Disease must remain the same: Prepare, prepare, prepare. In my Florida Elder Law practice, I help many patients and families establish the legal and financial plans necessary to deal with what is to come. These plans can help smooth out what will surely be a challenging road, and avoid unnecessary trauma. These plans must be put in place while the patient is competent. Once the patient is severly incapacitated, a costly and complicated guardianship may have to be instituted.

Below are some of the steps that should be taken when the diagnosis is Alzheimer’s:

Create a Durable Power of Attorney

A Florida Durable Power of Attorney will empower one or more people to handle the patient’s financial affairs when he/she can no longer do so.  Florida recognizes two types of Durable Power of Attorney: The contingent power gives the agent the ability to act only when the patient is incapacitated. The Immediate power allows the agent to act on the individual’s behalf as soon as the document is executed. A Florida Certified Elder Law Attorney can advise as to which type best suits the given situation.

Note that a Florida Durable Power of Attorney does not automatically authorize an agent to handle every type of matter. Specific powers must be authorized; for example, the ability to buy or sell property. One power someone diagnosed with Alzheimer’s Disease should include is the power to make gifts. This may become very important if and when the patient seeks to qualify for longterm care Medicaid benefits.

Create Advance Health Care Directives

Someone diagnosed with Alzheimer's Disease should establish Advance Health Care Directives. There are several types:

• Florida Health Care Power of Attorney(also known as the Health Care Surrogate). This document empowers one or more persons to make the Alzheimer's patients medical decisions when he or she is not capable of doing so. If the patient lacks a valid Health Care Power of Attorney and is not competent to communicate his/her own wishes, Florida Statutes determine who has the power to make the decisions. A worst-case scenario may involved a court guardianship. It is crucial that the Health Care Power of Attorney include a HIPAA release.

• Pre-Need Guardian Designation: It is also a good idea for the patient to name who he/she would like to serve as guardian, if for any reason guardianship must be commenced. Although the court is not bound to this request, it is heavily considered.

• Living Will: This document specifies the kind of life-extending care a person does or does not want if in a terminal or end-stage condition, or in a persistent vegetative state. The Living Will can be a great comfort to family members if they are ever called on to make these difficult decisions on behalf of the patient.

Review titling of assets of the patient and the spouse, and consider Medicaid Planning and Veterans Benefits Planning for Longterm Care

If a patient lacking adequate longterm care insurance requires custodial nursing care in the future, the family may apply for Florida Medicaid benefits. The ownership of assets plays a large role in determining whether the patient is qualified, and can make the difference between losing and preserving assets. Also, if the patient is a veteran or the widow of a veteran, eligibility for V.A. Benefits for home care, assisted living facility or extended nursing home care should also be explored.

Create a Will

A Florida Will directs to whom assets are transferred upon the patient’s death. Note that the will does not direct where assets go if they are jointly held or payable on death to a designated beneficiary. It may also be advantageous for the patient to establish a Trust. A Florida Certified Elder Law Attorney can discuss which approach best suits the situation.

If the patient is married, review the spouse's assets and estate plan

This is a journey that the spouse takes along with the patient! The spouse should establish an estate plan to protect him/her as well as the patient. If the spouse predeceases the patient, any inheritance the patient receives may result in termination of Medicaid benefits or a period of ineligibility. If the spouse's Health Care Power of Attorney and Durable Power of Attorney name the spouse as agent, these documents obviously will need revision, too.

We are unfortunately not yet at the point where Alzheimer’s Disease can be prevented, or cured.  We do however have the tools to minimize the legal and financial disruptions that ensue.