Articles Posted in Planning for Incapacity

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plane-50893_150Inevitably, in the summer months, I get phone calls from people who are about to take a trip somewhere, often within just a few days. Sometimes they have a Will or a trust that’s out of date; sometimes they have no estate planning documents at all; sometimes they have just finished getting divorced and are in a panic because they haven’t gotten around to updating their Will or trust.

Much as I try to help everyone who calls, sometimes (often) there’s just not enough time to update their documents before that plane takes off or the road trip starts. What to do?

Although none of the documents I’m about to suggest take the place of a well-drafted Will or trust, they can serve to get something in place before a trip, quickly and with minimal or no expense. Upon your return, you can come in and get the job done right — but at least you can take to the skies with some peace of mind.

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The tragic case of the Oakland twelve-year old girl, declared brain dead after a routine surgery by the hospital, and her parent’s plea to keep her connected to a ventilator nonetheless, reminds me yet again of the value and importance of completing an Advance Health Care Directive.  

This document allows you to name agents to act on your behalf with respect to health care decisions and to state your wishes for end of life care. 

In the immediate case, of course, the girl was a minor, and would not have been able to make her own advance health care directive, so it is her parents who are making those choices for her. For the rest of us, this case is a cautionary tale–it is important to let people know what your choices would be at the end of life if you are not going to be able to communicate your wishes yourself, otherwise you won’t have any control over how that decision gets made.

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It is a sad fact that elderly adults can fall victim to abuse, often at the hands of a family member or trusted friend or employee. The California State Bar estimates that one in seven seniors suffer some form of physical, financial, or psychological abuse.

Some common forms of financial elder abuse include:

Misuse of a Durable Power of Attorney: a person convinces a senior to sign a power of attorney, then uses that document to withdraw money from that person’s bank or brokerage accounts or to open fradulent credit cards in that senior’s name.

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mom and kids.jpgIt’s mother’s day and I’m thinking about the fact that my daughter goes to college soon. She also turns eighteen years old in November, and, in addition to the new camera she thinks that she wants for a present, I’m going to surprise her with something else–a Durable Power of Attorney and Authorization for Release of Confidential Health Care Information. I guess that’s what comes from being a mom and an estate planner. But once my daughter (and your children, too) turn eighteen, doctors are not going to release confidential health care information about them to you without the consent of your child.

By signing a Durable Power of Attorney your child can name you as an Agent to take care of his or her financial matters if they become incapacitated, and by signing an Authorization for Release of Confidential Health Care Information they are giving doctors permission to answer your questions should your child become ill or injured.

I am fully aware that my daughter would prefer the camera, and would prefer, honestly, not to have to think about the fact that turning eighteen is a big deal, legally, but pretending like she’s not growing up isn’t going to be sufficient if she ends up in the hospital and I can’t find out why.

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hospial.jpgAs an attorney, I’m used to people asking me questions with complicated answers. Life isn’t always neat and tidy, and the law isn’t always (ever?) cut and dried. But this is an easy topic to write about, because the answer to the question, “Who needs a Durable Power of Attorney?” is truly simple: Everyone!

A Durable Power of Attorney is a legal document that authorizes someone else, called your Agent, the power to act on your behalf. A well-implemented estate plan will have two such documents: one that authorizes your agent to act for you with respect to finances and property, the other to act for you with respect to health care decisions. In California your Durable Power of Attorney for Health Care is part of your Advance Health Care Directive, which names your health care agent and states your wishes for end-of-life care.

Think about it: all of us can get sick unexpectedly, or injured in a random and surprising way. All of us may face a few weeks or months during which we aren’t able to get to the bank, pay our bills, or otherwise manage finances. Any of us could face surgery that leaves us unable to communicate for some period of time. Medical privacy laws make it illegal for doctors to release confidential health care information, even to spouses and children, without your prior consent. Financial institutions will not allow you to get information, let alone act on someone’s behalf, unless they know you’ve been authorized to do so, and are not out to defraud one of their clients. That’s why Durable Powers of Attorney exist–because without them, getting sick would mean being stuck without any way to get the help we need.

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old car.jpgIf you are concerned about your aging parent’s ability to drive safely, you are not alone. It’s heartbreakingly common to watch a parent struggle with driving as they get older, not wanting to give up their independence or face their increasingly compromised abilities and judgement. It is just so hard to know when to speak up, before your parent is hurt, or hurts someone else.

There comes a time in so many people’s lives when driving can become a danger to themselves and others, but it can be a difficult subject to broach. No one, especially those facing old age, wants to give up autonomy or hear that they are not good judges of their own capacity. If you are grappling with this issue, here are a few ways that you might begin the discussion:

– You might tell your parent that you’re concerned about their safety and suggest that they make an appointment for an eye exam.