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 using those plans and documents to allow you and your loved ones to maneuver through your life changes. 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 guides 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 a legal document that states how you choose to distribute your property, to the extent the law allows with regard to your obligations, if any. If you have a family and you don’t write a Will, the law will decide who and how your family members will benefit from your assets. If you have a Will, the terms of the Will explain your distribution plan, again, presuming you manage legal obligations you may have (i.e. underage children or creditors, for example).
- Trusts are assets that are separated, controlled, and managed by someone (the Trustee), for the benefit of someone else (the Beneficiary), and they can be valuable tools for financial planning, asset protection, alternative to probate, 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 for use during and after your lifetime. Qualified attorneys and financial planners can advise you on whether a trust would serve your needs. Wills and Trusts can be coordinated to achieve your estate planning goals.
- Power of Attorney (POA) is another legal document that I would recommend for most individuals. This is a document that allows someone (the Principal) to appoint someone else (the Attorney-in-Fact) to exercise certain financial powers on behalf of the Principal. Without this pre-planned documentation, those who need to make financial decisions for others, who may no longer be able to decide for themselves, must usually resort to court-appointed Conservatorship relationships.
- Guardianship is court-ordered authority to decide the personal and medical needs of someone else (food, clothing, shelter, medical care, etc.) who cannot care for him/herself.
- Conservatorship is a similar court-ordered authority to manage the financial needs of someone else who cannot care for him/herself.
- Long-Term Care can be overwhelming 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 may be 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 an inaccurate beneficiary designation when someone has died and hasn’t accurately updated beneficiary designations. Common examples is forgetting to change beneficiaries after a divorce, or when a designated beneficiary dies before you do. Sometimes we just change our minds. Your Will does not “fix” in inaccurate beneficiary designation.
- Transfer on Death Deeds (TODD) are deeds that transfer real property in the same way one would leave a life insurance policy to a beneficiary upon your death. When you die, your TODD states to whom the property should be transferred, and may avoid probate.
- Payable-on-Death (POD) or Transfer-on-Death (TOD) is a way of creating a beneficiary for most bank accounts. Ask your bank for instructions (they all have their own rules). 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! Again, without this pre-planned documentation, those who need to make health care decisions for others, who are no longer able to decide for themselves, must usually resort to court-appointed Guardianship relationships.
- Do Not Resuscitate/Do Not Intubate (DNR/DNI) should be discussed with your medical professional before executing a DNR/DNI. Resuscitation and Intubation need to be fully understood to properly consider and choose to use or refuse these life-sustaining treatments. Like the POLST (below), it is an end-of-life treatment choice in “short-form” and quickly available for emergency professionals and other staff.
- POLST is an acronym for Physician Orders for Life Sustaining Treatment. Like the title says, it is a doctor’s order, and you and your doctor should consider 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. These orders 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.