When creating your estate plan, you may consider utilizing incapacity planning.  Such will allow you to be prepared, regardless of life’s many misadventures.  If you’ve been putting off this area of planning, take a look at some of the information below to see why it’s important.  If you have any questions, or if you’d like to discuss incapacity planning, meet with an estate planning attorney.

Incapacity Planning 101:  Planning for when you cannot make your own financial or health care decisions

The following estate planning documents allow you to be prepared in the event of incapacity.  This will ensure that your needs are met, even if you’re unable to make your own decisions.  Without these documents, you will have little control or say in your affairs.

• Power of attorney for healthcare

This document allows you to appoint an agent who will be responsible for making medical decisions on your behalf.  If you’re ever unable to make these decisions, you likely want to make sure that you have a trusted helper by your side.  Your agent will have access to your medical records, be responsible for communicating with medical staff, and help to make decisions that are in your best interest.  Without this document, your family may have to go to court in order to get the approval needed to help you.

• Power of attorney for finances

A financial power of attorney, sometimes called a “general durable power of attorney,” appoints an agent to manage your assets and pay your bills should you become incapacitated.  This avoids the court mandated guardianship process.

• Living will

A living is used to detail important end of life medical decisions.  If you’re ever incapacitated and at the very end of life, this document is needed if you don’t want to be hooked up to machines.  This gives you the opportunity to voice your desires ahead of time so that your wishes are respected, even if you’re unable to make a decision at the time.

Make sense?  We encourage you to take the time to handle your incapacity planning affairs.  If you have any questions, or if you’d like to discuss your incapacity planning needs, consult with a qualified estate planning attorney.

Co-Executor, PLLC is a member of the American Academy of Estate Planning Attorneys.

A conservatorship may be necessary in the event that an individual becomes incapacitated and unable to care for their personal or financial needs. If someone is unable to handle their own care, a family member must file a petition with the courts in order to gain legal control over that person’s care, as well as their finances.

If someone is appointed conservatorship over someone, the conservator will make decision about the person’s healthcare, living arrangements, even what they can do for recreation and what they eat. If there is someone that has conservatorship over the estate, they will make all of the legal and financial decisions for that person as well.

It can be quite expensive to establish conservatorship when you take into account all of the court costs and attorney’s fees, and the fact of the matter is that it is all really unnecessary. There are a number of ways that you can avoid a conservatorship, but to do this will take some planning.

One of the best ways to avoid the need for a conservatorship in the future is with a Living Trust. When you have a revocable living trust you can appoint a successor trustee that can handle your financial affairs if you should become incapacitated. Additionally, you will want a Durable Power of Attorney that gives someone the right to act in your behalf. A Medical Power of Attorney will appoint someone to act as your healthcare agent so that they can make medical decisions for you, if you are unable to make these decisions yourself.

Another important document is the Living Will; this will let your doctors and loved ones know what type of medical care you would like, such as if you don’t want certain types of life support used to extend your life.

Anyone that is not a minor is in danger of having a conservatorship over them, and for this reason it is important to have an estate plan that provides all of the necessary documentation to avoid this situation. If there is a conservatorship, the person that is appointed to this position by the court, may not be someone you would want to act in your behalf.

To ensure that the person that is taking care of your affairs is someone that you feel comfortable with and can trust, you will want to take steps to avoid the need for a conservatorship in the future.

Co-Executor, PLLC is a member of the American Academy of Estate Planning Attorneys.

If you are considering creating a healthcare power of attorney document, you may be confused about its use.  It’s important to consider this document, so that you are prepared in the event of an emergency.  We’ve outlined answers to some common questions regarding the use of healthcare power of attorney documents.  If you have any additional questions, or if you’d like to create your healthcare power of attorney, meet with our estate planning attorney.

Do I also need a living will?

A living will is another recommended estate planning document.  A living will allows you to plan out your medical treatment wishes ahead of time. With this document, you will discuss end of life treatments and procedures.  If you execute a healthcare power of attorney document, your agent won’t be able to go against the treatment wishes that you include in your living will.

When does my healthcare power of attorney document become effective?

Your document will become effective when you’re unable to make your own medical decisions.  This means that you are unable to communicate your healthcare wishes and may not understand the consequences of the medical decisions that you make.  If you become seriously disabled or incapacitated, your document will be effective.

Why do I need this document?

You need a healthcare power of attorney if you want to have control throughout your lifetime.  There may be a time when you’re unable to make your own decisions.  If you want your medical care to be in great hands, you want to have a say in who is making decisions on your behalf.

If you have any additional questions about the use of this document or if you’d like to create your own healthcare power of attorney document, consult with our qualified estate planning attorney.

Co-Executor, PLLC is a member of the American Academy of Estate Planning Attorneys.

If you are starting your estate planning, you may be considering the use of a healthcare power of attorney document. This can be a great way to be prepared in case you are ever involved in a medical emergency. You can make sure that your medical needs will be met and that you have someone who will act in your best interest during your time of need.  We’ve outlined answers to common questions regarding the use of this document.  If you have any additional questions or if you’re ready to create a power of attorney document, meet with our estate planning attorney.

What is a healthcare power of attorney?

A healthcare power of attorney is a legal document that allows you to appoint an agent.  This agent is responsible for making sure that your medical needs are met and helping to make important healthcare decisions on your behalf.  Your agent is authorized to communicate with your medical professionals and access your medical records.  This allows you ensure that your needs are met, even if you are unable to make your own decisions. If you ever become incapacitated, you will want this document in place.

What can my agent do?

Your agent will be able to help you in a number of ways.  He or she will be able to communicate with medical staff members on your behalf.  This includes discussing your condition, treatment options, and your needs. Your agent will be able to make important medical decisions such as hiring a doctor and deciding in what facility you will receive treatment.  He or she will also make sure that you are receiving the best treatment possible and that all of your needs are met.

How do I choose an agent?

You want to choose someone who is honest, caring, and reliable.  Your agent should feel comfortable discussing your care with medical professional.  He or she should also be willing to commit to all responsibilities and time requirements needed to help you during your need.  Your agent should also feel comfortable discussing difficult decisions including treatment options.  Talk with your agent ahead of time to make sure that he or she is comfortable with the job duties.

Take a look at our next blog post (part 2 of 2) to learn more about this important medical planning document.  If you have any additional questions or if you’d like to execute a healthcare power of attorney, consult with our estate planning attorney as soon as possible.

Co-Executor, PLLC is a member of the American Academy of Estate Planning Attorneys.

A guardianship proceeding, called a “conservatorship” in some states, is necessary if an individual either doesn’t have an incapacity plan in place or isn’t cooperating with the plan that is in place.

There is speculation that celebrities such as Lindsay Lohan and Charlie Sheen need a guardianship proceeding to have a guardian appointed to manage their finances and make decisions on their behalf.   If the case was brought, judge would likely say that they seem “crazy” and out of control, making decisions that are harmful to themselves and, perhaps, others.  This is “incapacity.”

A guardianship process is expensive, time consuming, inconvenient, and public.  Most people find it extremely stressful as well because there is testimony as to why the individual should be deemed to be legally incompetent.

(Of course, Charlie Sheen has likely already made the case for incapacity with his myriad of public appearances.  This is true of Lindsay Lohan as well.)

Brittany Spears is a celebrity for whom guardianship worked successfully.  In California, the guardianship process is called “conservatorship.”  Spears’ father brought a conservatorship proceeding and was named conservator.  He handled the finances and made decisions on her behalf.  Spears’ appears to have pulled herself together and is making good decisions thanks to her father’s intervention.

The same process can be used to help every day people as well.  Typically, a power of attorney agent and a disability trustee are able to manage finances and handle day to day business matters if someone is incapacitated, temporarily or permanently.

In the case of an individual being out of control like Brittany Spears, Lindsay Lohan, and Charlie Sheen, a court guardianship proceeding would be necessary.  In cases like these, the individual is not likely to voluntarily relinquish control.

Co-Executor, PLLC is a member of the American Academy of Estate Planning Attorneys.

The term “elder abuse” is a term that is commonly used to describe a various actions that causes harm to an elderly person. According to the Administration on Aging, elder abused is defined as any type of negligence or action by a caregiver or family member that causes harm or serious risk to an elderly individual.

There are several different types of elderly abuse, these include

Neglect – This type of abuse would include the refusal to provide the basic necessities to an elderly person by those that are responsible for that person; some examples would include health care, shelter, food, clothing, medicine, etc.

Sexual Abuse – An elderly person is being sexually abused if they are forced into any type of sexual contact and they have not or cannot give their consent.

Physical Abuse – Someone that is being physically harmed or threatened with physical harm or pain is being physically abused. In addition, depriving someone of basic needs is also considered to be physical abuse.

Emotional Abuse – If a caregiver inflicts mental and emotional pain on someone with verbal assaults or not talking to the person at all, this would be considered emotional or physiological abuse.

Financial Exploitation – This would include illegally taking, misusing or hiding funds, assets or property of en elderly person.

Abandoning – This type of abuse occurs when someone that is responsible for the care of an elderly person deserts or abandons them. For example, if an elderly person needs 24-hour care, and the person that was responsible for that care left them alone to run to the market, this would be considered abandonment and neglect.

Elder abuse is a serious issue, and cases of abuse or on the rise. The increase in elder abuse could be due to the fact that people are living longer, and as a result there are more elderly people that require caregivers today. Whatever the cause, elder abuse is a major problem in today’s society that needs to be addressed.

If you suspect that your loved one may be suffering from elder abuse, it is essential that you contact the proper authorities at once, and remove the person from the care of the person that is abusing them.

Co-Executor, PLLC is a member of the American Academy of Estate Planning Attorneys.

Selecting a long term care facility is a difficult decision that often must be made on the heels of a heath crisis. Planning ahead will make the situation much easier to manage if it does arise, and the advance planning will also give you some time to prepare for the considerable expenses involved.

When you are ready to start the process of choosing the facility that best suits your needs, you may want to ask others about their experiences with nursing homes or assisted living facilities. Word of mouth is a valuable tool when making choices of this magnitude. Often your doctor, family members, friends, neighbors, or clergy have had personal experiences with long term care and they may have recommendations.

The Florida Agency For Health Care Administration’s Nursing Home Guide is an extremely valuable resource. It includes nursing homes that are on the “watch list” due to financial problems or a failure to maintain necessary standards during regular state inspections. The guide provides detailed information, including a “star” rating system that is a fantastic resource for anyone who is trying to identify a quality long term care facility.

You can also do the legwork. Call the facilities and ask questions about the services they provide, the specifics of the cost structure, and room availability. It is a good idea to compile a list of questions before you call and record the answers so you can make comparisons. When you schedule a visit you will get the planned tour; before you actually make the commitment you may want to make a surprise return visit to see how things appear when no advance preparations have been made.

Entering a long term care facility can be difficult when you have been independent all of your life, and like any challenge, it is best undertaken when you are properly prepared.

Co-Executor, PLLC is a member of the American Academy of Estate Planning Attorneys.

When you are interested in consulting with an estate planning attorney you may at first be focused purely on the financial elements. There can be a lot to consider in this regard depending on the size of your estate and the specificity of its contents, so it can indeed take some careful planning to optimize the positioning of your resources. But if you want to be comprehensively prepared you must also consider the latter stages of your life as well as the legacy you will leave behind at the time of your death.

When you combine two different statistical realities you see the need for a particular type of action. For one, the nation’s population is growing older at a rapid pace and lifespans are expanding. The oldest among us are the fastest growing segment of the society, so when you are looking toward the future it is very realistic to consider the possibility of living into your late eighties and beyond.

The second relevant statistic involves the ubiquity of dementia. It is estimated that somewhere in the vicinity of half of all people who are at least 85 years old suffer from dementia. So if you do in fact join the growing ranks of the oldest old some day you may well find it impossible to make all of your decisions on your own.

This is why most people who want to be totally prepared for all of the eventualities of aging execute durable powers of attorney. Unlike a general power of attorney, the durable POA is still recognized after the incapacity of the principal. One can execute a durable financial power of attorney and name an attorney-in-fact to make financial decisions, and a durable power of attorney for health care to empower a medical decision maker.

The fact is that you may never be in a position where you cannot make your own decisions. But it is always wise to be prepared, and the execution of durable powers of attorney can provide you with the peace of mind that comes with knowing that all of your bases are covered.

Co-Executor, PLLC is a member of the American Academy of Estate Planning Attorneys.

When you get serious about planning your estate you invariably find yourself evaluating the myriad elder law issues that you will face when you reach the latter stages of your life. One of these is the burgeoning problem of elder financial abuse, and it is a rather sensitive topic to delve into on a number of different levels. However, the only way to take steps to protect yourself from it is to be aware of the dangers that exist and confront the matter openly and pragmatically.

There are essentially two delicate components to the issue. Firstly, the people who are being abused as elders were not victimized when they were younger. Why is this? Clearly, in most cases it has something to do with the reduced mental faculties that often accompany advanced age. Those who would seek to take advantage recognize this weakness and they try to exploit it. Seniors may fall victim to identity theft, telemarketing scams, get rich quick offers, mortgage scams, Internet-based predatory schemes and every other “con du jour” that can be hatched by the unscrupulous mind.

Sadly, these outsiders are not the most common perpetrators of elder financial abuse. That dubious distinction is held by family members, caregivers, and what people describe as “trusted advisers.”

Seeing these facts laid before you can make it seem like you can’t trust anyone, but this is not really the case. Timing may be the key. First, you want to identify the people that you can rely on long before your faculties are in any way diminished. Don’t shy away from the subject of future mental incapacity or reduced faculties; discuss these eventualities with your attorney and family members that you have total confidence in. You can protect yourself from elder financial abuse if you take the correct legal steps before you are no longer in a position to make sound financial decisions.

Co-Executor, PLLC is a member of the American Academy of Estate Planning Attorneys.

When you are planning for the latter portion of your life it is important to take all possibilities into account. Of course it is easy to understand why someone might avoid thinking about something like incapacitation and just hope for the best. It could be said that personal decisions are just that, personal, so it is up to you. But the reality is that a failure to plan for possible incapacitation can impact your family profoundly, and this should be a motivating factor even if you are content to let the chips fall as they may.

The way that you can state your wishes should you become incapacitated at some point in the future is through the execution of two advance health care directives: the living will and the health care proxy or durable medical power of attorney.

With a living will you elucidate your medical preferences involving the types of procedures that you would be willing to accept and those that you would rather refuse in the event of your incapacitation. The issue of whether or not you would want to be kept alive on life supports systems if you were in a terminal condition is often central to a living will. This is clearly a very sensitive subject and you can imagine family members could disagree about this and a very uncomfortable situation could erupt at the worst possible time.

The durable medical power of attorney is used to name someone that you empower to make medical decisions for you if a time was to come when you can’t make them for yourself. You may say that this is what the living will is for, but it can be difficult to cover every possible medical scenario in a living will. So when you have a medical representative in place you are covered regardless of the circumstances that might arise.

Co-Executor, PLLC is a member of the American Academy of Estate Planning Attorneys.