The Talk: Basic Documents

Children are typically the ones to care for their ill and aging parents. But, the reality is, for some families, that simply is not an option. If you are able to provide this type of care for your parents, GREAT! However, be careful before passing judgment on those who have to make different, difficult, and alternative decisions. To paraphrase a popular saying: Walk a mile in their shoes first before judging.

As we have navigated having to change my parents plans, it has been difficult for them and for us. Although Dad planned well, he has had to change what he wanted, how he wanted to live his last years. None of this was any fault of his own. Things happen. Health needs changed. Some things simply were not foreseen.

In the past, life insurance, retirement accounts, standard wills, and pre-paid funerals seemed to be all that was needed to prepare for the end of life. Although still necessary, it is simply not enough. Laws have changed. Healthcare has changed. Legal documents are now recommended to ensure that personal wishes are carried out as well as for the protection of the one who is ill or incapacitated. Regardless of the age of the individual, many things must be considered to ensure family is cared for when faced with a long term illness or a family member who is healthy becomes incapacitated due to dementia, Alzheimer’s, or mental disorders.

To aid in planning, gather as many official documents and financial information as possible. Place all of these documents together as you formulate future plans. These would include: birth certificates, marriage licenses, death certificates, divorce decrees, passports (if any), military records (DD-214’s, etc.), retirement plans, social security information, 401K, annuities and other investments, titles and deeds, any insurance plans and policies, and any pre-paid funeral arrangements. There may be other documents needed depending on your family’s situation. Keep these documents in a fire and water proof safe or other safe location. Scanning the documents is also a good idea. Having these items together before making any plans will help speed up the process in preparing your loved ones’ legal documents.

A standard will is familiar to most of us. A standard will establishes an executor(s) who will ensure that your final wishes are met. A standard will also establishes beneficiaries of the estate. The will can be as specific as one desires it to be. If there are minor children in the home, a standard will should designate who will become the guardian of the child(ren). A standard will only goes into effect upon the death of the individual. If you or your loved one already has a standard will in place be sure to have it evaluated by an eldercare attorney to verify that it is up to date with today’s laws. Wording is crucial when ensuring that the estate goes to whom it is intended when it is intended.

A living trust is another means by which an individual (trustee) can manage his or her assets. It is usually established by the individual and should also include a successor(s) in the event the individual trustee is unable to continue to manage the trust. Typically, all assets (bank and retirement accounts, property, etc.) are transferred to the trust in order to be managed efficiently. Depending on the state, a trust may help avoid probate in the event of the death of the individual. A secondary reason to protect assets through a trust is due to Medicaid and VA benefit qualification. For Medicaid qualification there is a five year “look back.” For VA Aid and Attendance qualification there is a three year “look back.” The short explanation is that each agency will request to “look back” on all financial and asset information for their respective time periods. Seek the advice of an attorney familiar with these policies to best protect your loved one and their estatGuardianship, or conservatorship, may become necessary in the event a family member can no longer make their own financial or health care decisions. This is a court appointed position. It is not a common practice and often occurs if no power of attorneys are in place or when family members disagree on the care of the one who has become incapacitated. The process varies by state and provides both the individual as well as other family members the option to object. The court must first determine that the individual is legally incapacitated. The court may then appoint a guardian for the individual to make decisions regarding the person’s care and custody. The best way to avoid going through the guardianship process (or potential family squabble) is to name who will make both financial and healthcare decisions upon incapacitation through wills and other documents.

A power of attorney allows an individual (principal) to designate someone (agent) to manage finances and assets, and to make other decisions should the individual become unable to do so. The power of attorney should also indicate successor(s) in the event the originally named agent is unable or unwilling to serve. The document should also be written to be “durable” in that it will be valid even when the individual is incapacitated and no longer able to make decisions. Seek the advice of an attorney to help explain the various types of power of attorneys. Some may be limited to certain situations while others may continue after the principal becomes mentally incapable.

Not only do finances and assets need to be protected, but the desires an individual has regarding their healthcare should they become incapacitated must be discussed and planned. The following documents are ones you may be asked for at a hospital, doctor’s office, or care facility. Having these already prepared will help alleviate stress for the family in the event of a medical crisis.

An advanced healthcare directive is more than a simple document explaining your medical desires for treatment. In some states it may also be called a living will. Carefully research what treatment options you wish to have in the event you are incapacitated so that you can make informed decisions, particularly if suffering from a chronic or deteriorating illness. The document should also list who is to make medical decisions on your behalf if you are unable to do so. The advanced healthcare directive is the most important document a patient can have to ensure they receive the treatment options they desire. Once established, ensure that each of your doctors has a copy in your files.

A healthcare power of attorney is in addition to the advanced healthcare directive; sometimes it may be included as part of the living will. The healthcare power of attorney designates the individual (agent) who will make healthcare decisions on your behalf should you become incapacitated. The individual you name should be very familiar with your desires. They should also be able to provide a copy of your advanced healthcare directive, a do not resuscitate order (DNR), or your physician orders of life sustaining treatment (POLST) to the hospital or treatment facility should it become necessary.

The following two medical forms may be considered controversial for many. I list them because they are something that each individual needs to research and to decide for themselves. Personally, I have yet to decide how I feel about these documents. I will say that for the most part I do not believe they are necessary for every individual, but they might be considered by those who suffer from a deteriorating or terminal illness. These documents do not promote euthanasia. However, they do help an individual making end of life decisions make ones they believe are in their best interests and provide them with dignity in their final days. (Again, walk a mile.)

For those who do not wish resuscitation measures taken on their behalf by medical personnel you may wish to have in place a do not resuscitate order (DNR). In most cases the individual can determine the conditions when they want the DNR enacted. Speak with your doctor and lawyer to ensure that you understand the various options available. It is important that the document expresses your desires. Once enacted medical personnel will enforce it. If you are uncomfortable with this document, please note that it is not required.

An alternate form to consider is a physician orders for life sustaining treatment (POLST). It may also be known as other names in various states. This order allows you to specify your desires regarding hydration and nutrition, comfort measures (or palliative care), and resuscitation. This form is also not required. For both of these orders it is imperative that you fully understand the implications of the documents. Ask if there are conditions when the orders may be revoked by the individual or the healthcare agent. Your desires should be very clearly expressed on both of these forms.

At the very least, if you do not wish to have any of these healthcare documents in place, a long, difficult talk should be had with multiple family members before decisions must be made so that your wishes regarding medical care will be followed. Often, especially in an emergency situation, emotions take over decision making. Ensuring that multiple family members understand your desires will help to keep everyone calm and to follow your instructions.

This information is not meant to be legal or medical advice by any means. We simply have provided information we have discovered as we plan for future difficult decisions. Will we need all of these items? Probably not. However, there is much more needed today than there was even 15 years ago. Details of what is needed, how to proceed, and options available vary from state to state. Eldercare associations have a wealth of information to aid in making plans. It would be wise to seek the counsel of a lawyer familiar with end of life decisions to assist you with any documents or needs that you may have in planning.

Because elder law can be complicated, it is important to seek an attorney who specializes in these matters. I cannot express the thankfulness we have for the law firms (two different states) we have been able to utilize in order to protect my parents in their final years. Ask for references from friends or other family members if they have worked with an eldercare attorney. The following are organizations with directories for locating an eldercare lawyer in your area.

National Academy of Elder Law Attorneys, Inc. (NAELA)

National Elder Law Foundation (NELF)

No two family situations will be the same. Each individual and family needs to have these difficult discussions in order to determine what each person’s wishes are. Unfortunately, we have seen far too many families split apart in disagreement at a time when they need to be drawn together simply because the hard talks never took place. Additionally, we have seen many go through financial ruin because they did not have their assets set up to be managed in their best interests. As stated previously, these difficult discussions and decisions are the most loving acts you can do for your family.

Don’t delay. Start talking.

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