Legal matters

Everyone should spend an hour talking to an Elder Law or Probate attorney. This first meeting, called an initial consultation, could potentially spare your family thousands of dollars in unnecessary expenses and much heartache.

An Elder Law or Probate attorney can help us plan for two separate and critical phases of our lives. The first phase is a potential period in our life when we are unable to care for ourselves or are unable to make decisions about our medical care or finances. The second phase is the “probate phase” or the time after we have passed away.

Example: A 65-year-old woman falls on her icy driveway and is in a coma. Her family rushes to the hospital and is met by a series of questions from the medical staff about what kinds of treatments the injured women would want administered.

Without advance legal planning, family members may be asked to answer detailed questions about the direction of medical treatments that they cannot answer. Even if family members know the desires of the injured person, they may not have the legal authority to make decisions for the injured person.

The following information is not intended to be legal advice and it must be noted that the laws vary in each state.

There are two situations in which we can obtain the legal authority to make decisions for a loved one:

  • Power of Attorney – The ideal situation is before something happens when the person is still of sound mind and they willingly give us the power to make decisions for them. This situation is called a Power of Attorney.
  • Conservatorship or Guardianship – The less desirable situation is after something happens and the person we want to help is not able to make a competent decision.

An “immediate” Power of Attorney means that once the forms are signed, the person who was granted the Power of Attorney can begin making decisions. This would be appropriate for someone scheduled for major brain surgery – in case the surgery goes bad and decisions have to be made about life-sustaining actions.

The other type of Power of Attorney takes effect only after a specific triggering event takes place. The triggering event is described in detail in the application for Power of Attorney. For example, a person with a diagnosis of Alzheimer’s might complete paperwork for Power of Attorney that will allow their daughter to make decisions for them once two physicians determine they are no longer capable to make their own decisions.

There are typically two separate areas covered by a Power of Attorney: Power of Attorney for the Person and a Power of Attorney for the Estate. Either one individual can have the responsibility for both areas or two different persons can handle them.

The Power of Attorney for the Person allows decisions to be made regarding issues like health care and living arrangements. The Power of Attorney for the Estate allows financial decisions. This Power of Attorney allows someone to become a signer on the parent’s checking account and liquidate assets to pay for their health care bills and other expenses.

A person who holds any Power of Attorney is held by the court granting the Power of Attorney to a standard of conduct of acting in the best interest of the person who gave the Power of Attorney (this is commonly referred to as a “fiduciary duty”). This duty is what is supposed to stop an adult child from spending all their parents’ money.

Conservatorship is the other, far less desirable, method for obtaining the legal authority to make decisions for someone. This is the required route when no advanced planning has taken place and someone is no longer mentally capable of making their own decisions. Arranging a Conservatorship can take months and can be very expensive and someone will have to pay the attorney and court costs up front.

In Conservatorship, the first step is for a petition to be filed with the Probate Court. The petition names the person who needs help, called the Conservatee, and the person who wants the power to make decisions and the legal reasons for needing Conservatorship. The person asking for the Conservatorship will usually need to include medical statements from attending physicians attesting to the Conservatee’s medical condition and how those conditions prevent the Conservatee from being able to handle their own affairs.

Once the petition is filed, the Court then sends out an investigator to visit the person who supposedly cannot care for themselves along with their medical providers. The investigator reports the results of their investigation to the Court.

Example: Someone has a major stroke and is in a permanent vegetative state and one of their adult kids files a petition for Conservatorship. The investigator from the Court would go to the person’s hospital bed to make sure the person is, indeed, laying there in a vegetative state as described in the petition. At the end of the investigative process, the judge holds a hearing and issues a ruling whether or not to grant the Conservatorship.

One way Conservatorship is different from Power of Attorney in that a Conservator has to make periodic reports to the court about his or her activities. Conservators are usually family members but someone else can fill that role also. A family might want a professional like a CPA or Geriatric Care Manger to be the Conservator. This could be appropriate when no family member lives nearby or no family member wants the responsibility.

Conservatorship has two types: Conservatorship of the Person and Conservatorship of the Estate and one person can fill both positions.

We can try to avoid being kept alive for months or years at the end of our lives hooked up machines in two ways. The first is to set up at Power of Attorney and make sure the person you name in the Power of Attorney knows what your specific desires are (like your desire to have a feeding tube, surgeries or narcotics for pain relief etc.).

The second way typically involves your health care providers. You can tell your personal physician your wishes in writing. If you are hospitalized, you can fill out an “advance medical directive” that will instruct the hospital and staff about your wishes regarding surgical complications and issuance of a “Do Not Resuscitate” (DNR) order. Since there is an ever increasing variety of “life sustaining measures,” many hospitals have begun using a new form called a “POLST” which stands for Physician Orders for Life Sustaining Treatments. It goes into detail on specific treatments one does or does not want.

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