Category: Living Will

Older Singles need to Plan for the Unexpected

Older Singles need to Plan for the Unexpected

The U.S. Census Bureau reports nearly a third of all seniors live alone—about 14 million—some of whom don’t have children or anyone to care for them if they need help. However, according to a recent article from Forbes, “Essentials for the Solo Ager,” everything is fine until there’s a problem. This is especially true when the solo ager’s friends are all about the same age and in the same situation. Older singles need to plan for the unexpected.

One financial adviser asked an estate planning attorney to contact a client who was 88, living alone, still driving and maintaining her own home. She had an inadequate estate plan done for free by a volunteer at her senior center and needed a Power of Attorney and Health Care Power of Attorney. In addition, her only living relative lived outside of the United States, and the person she relied upon was a 90-year-old, legally blind neighbor. All of this had worked fine for years, but at 88, she was highly vulnerable.

Here are some options for solo agers to consider while planning constructively for the future:

Consider naming a fiduciary to handle finances in your estate plan, which an experienced estate planning attorney should prepare.

Healthcare decisions are often a minefield for someone who is cognitively or physically impaired and unable to make decisions. Some professionals can be named as your healthcare agent, preferably someone who knows the healthcare system and can advocate for you if you are incapacitated. In addition, a healthcare power of attorney would be needed.

Make your wishes and preferences clear in your estate planning documents, so someone who does not know you well can follow your specific directions and fulfill your wishes.

Give up the idea of being 100% well until you pass. Most seniors unfortunately experience one or more health challenges and need more assistance than they ever imagined. Be realistic and identify younger adults who will be able to help you and give them the legal tools to do so. If they never need to help you, fantastic, but if they do, you’ll be glad to have their help.

Single people are independent and self-reliant and take pride in these characteristics. This is great.  However, there comes a time when none of us can be independent. No one likes to think about losing their independence or becoming disabled. However, planning will keep you safer rather than hoping for the best.

Older singles need to plan for the unexpected. Meet with an experienced estate planning attorney who will help you plan for your future. If you would like to learn more about aging in place, please visit our previous posts. 

Reference: Forbes (March 26, 2023) “Essentials for the Solo Ager”

 

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Steps to Take for End-of-Life Planning

Steps to Take for End-of-Life Planning

Most people don’t consider anything about planning for incapacity or death to be joyful. However, if you consider estate planning documents as a way to share your wishes and make your departure easier for those you love, as well as a means to express your thoughts and feelings, it could make these tasks a little cheerier. A recent article from The Washington Post, “6 joyful steps for end-of-life planning,” could help reframe how you think of estate planning. There are some concrete steps to take for end-of-life planning.

From a practical standpoint, death and incapacity are complicated for loved ones. They will appreciate your preparing an advance health directive, which should be created when a person is healthy, and not when they are in a hospital bed. The same goes for funeral arrangements, which are costly. There are so many choices and decisions to make—do your loved ones even know what you want? Leaving instructions and paying in advance will remove the burden for adult children trying to know what you wanted and dealing with the expense of paying for a funeral.

Digging through a loved one’s credit card bills, cellphone accounts, bank accounts and internet passwords is a big challenge in today’s digital world. It was far easier when there were stacks of paper for every account. Today’s executors need to have all of this information to avoid lost assets, avoid identity theft and prevent roadblocks to wrapping up your estate.

Here’s a checklist to help get your estate plan moving forward.

1 Create a crisis notebook. One binder with all estate planning documents will make it easier for loved ones. You should make additional copies but keep originals in one place—and tell your executor where the binder can be found. Create a worksheet of your many documents, so loved ones will know what they are looking for.

2 Have an advance directive created while you are having your estate plan made. This tells your loved ones what you want in case of incapacity and end-of-life decisions.

3 Have a will created with an experienced estate planning attorney. Without a will, the laws of your state determine how your property is distributed and who raises your minor children. Wills are state-specific, so a local estate planning attorney is your best resource. Be wary of online documents—if they are deemed invalid, it will be as if you didn’t have a will.

4 Make a digital estate plan. No doubt you have more than one email account, shopping accounts with more than a few retailers, credit cards, car leases or loans, home mortgage payments, social media, cloud storage, gaming accounts and more. Without a complete and comprehensive list of all accounts, your executor won’t know what needs to be closed, where your personal documents or photos live or how to retrieve them.

5 Plan your funeral. Yes, it is a little morbid, but do you want your loved ones to have to incur the cost and the emotional burden of planning, when you can do it for them? You’ll feel better knowing your wishes will be followed, whether it’s for a “green” funeral or a cremation, with a long period of mourning following your faith’s tradition or a short memorial service.

6 Write a letter of intent and any final farewells. This is an opportunity to share your thoughts with those you love, with healthcare providers and anyone else who matters to you, about healthcare decisions at end of life, or to convey your values, hopes and dreams for those you love.

When you take these steps for end-of-life planning, you’ll be surprised at the sense of relief you feel. If you would like to learn more about end-of-life planning, please visit our previous posts. 

Reference: The Washington Post (Jan. 5, 2023) “6 joyful steps for end-of-life planning”

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Documents needed for Advance Care Planning

Documents needed for Advance Care Planning

Starting discussions earlier helps ensure that a person with dementia stays involved and understands the planning process. In the same fashion, regular reviews of plans over time are beneficial for ensuring that their wishes are carried out. There are a few essential documents needed for advance care planning that you need to have included.

Health News’ recent article entitled “Can Someone With Dementia Sign Legal Documents?” cautions that, when family members don’t know the preferences of their loved one, they have difficulties and stress in making decisions. Family members may also have feelings of guilt, self-doubt and stress while making advanced care decisions.

Laws in each state may differ. Working with an experienced elder law attorney can help seniors interpret state laws, plan how wishes should be carried out and understand financial options.

Geriatric care managers, trained social workers, or nurses can also offer support to those living with dementia, as well as their families.

While advance care planning, families and their loved ones with dementia should create a plan for long-term care and plan for funeral arrangements in advance.

Advance care planning documents commonly include the following:

  • A durable power of attorney for healthcare names someone to function as a proxy for the person with dementia, when he or she may be unable to make healthcare decisions for themselves.
  • A living will includes an individual’s wishes for end-of-life treatment. This can concern specific procedures such as dialysis, tubal feeding, or blood transfusion. If the person becomes permanently unconscious (coma), families can make treatment decisions based on wishes expressed in a living will.
  • A do-not-resuscitate order (DNR) is put with a patient’s chart when the patient doesn’t want to receive cardiopulmonary resuscitation (CPR) if their heart stops or breathing ceases. A doctor needs to sign these DNR orders before they can be placed in the patient’s charts.

Advance care planning can be a sensitive topic for families and those with dementia.

Getting medical and legal advice early is helpful in planning advance care. Involving the person with dementia in the planning process also helps families ensure that the wishes of the patient are respected. Work with your estate planning attorney to ensure these needed documents for advance care planning are included in your overall planning. If you would like to learn more about advance care planning, please visit our previous posts. 

Reference: Health News (Jan. 11, 2023) “Can Someone With Dementia Sign Legal Documents?”

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How the Guardianship Process Works

How the Guardianship Process Works

For family members of the estimated 6.5 million dementia patients in the U.S., it is crucial to understand whether guardianship may be an option for their loved one. A recent article from Next Avenue titled “Thinking of Becoming a Guardian?” explains how the guardianship process works and what factors go into the decision-making process.

Guardianship is the position of being responsible for someone else. State courts usually appoint a guardian to make decisions for a person, if the court finds that person to be incapacitated or unable to make safe and reasonable decisions for themselves. People who are placed under guardianship, known as “wards,” often lose their independence in making financial, legal and health care decisions.

If full guardianship is awarded, the person cannot make decisions about whether they may vote, marry, where they live, or make their own end-of-life decisions.

Two tasks that are evaluated when considering guardianship are a person’s ability to manage personal finances and to take medications as prescribed.

The court may call on a geriatrician or psychiatrist to evaluate the person’s functional behavior, cognitive function, disabling conditions and ability to meet their essential needs.

There are benefits to guardianship for someone who is not able to care for themselves. It ideally creates a safety net for a person who cannot make informed decisions for themselves.

this, of course, assumes that the guardian is honest and accountable, which is not always the case. The inconsistencies plaguing the guardianship system include minimum standards for guardians, lack of regular independent reviews of the need for guardianship and lack of educational requirements for guardians.

Once guardianship is assigned, there is a tendency for the person to become lost when no follow-up is done. The very same person who lacks capacity to care for themselves is not going to be able to advocate for themselves, contact an attorney or access funds for court proceedings.

There is also a tendency to assign full guardianship for a person, rather than less restrictive alternatives.

There are alternatives, but they require planning and discussion. More than 40% of Americans have not discussed their wishes for end-of-life care with their loved ones, according to an article in the Journal of the American Geriatrics Society. Families should have a conversation at the first sign of memory loss or when preparing for retirement regarding wishes for end-of-life care and write them down as part of an Advanced Directive—also known as a Living Will and Health Care Power of Attorney—when preparing their estate plan.

Another important document, although not legally binding, is a “Value History,” where you share your values and beliefs as they may impact care choices.

Designate a Power of Attorney and list two or even three back-up candidates. This person will be responsible for financial, legal and personal matters, avoiding the need for guardianship.

Appointing a family member or friend as a guardian is the ideal solution. However, there are instances when the best person to be a guardian is not a family member, but a court-appointed outsider. This relieves the family of being the ones who need to inform a person suffering from dementia with the news of having to move into a nursing home facility or sifting through financial records to learn that the family home is in foreclosure. The family can focus on being supportive and loving, while the guardian deals with the sometimes harsh realities of the person’s life.

Speak with your estate planning attorney to learn about how the guardianship process works, and whether it may be the right move for your family. If you would like to learn more about guardianships, please visit our previous posts.

Reference: Next Avenue (Dec. 23, 2022) “Thinking of Becoming a Guardian?”

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Advance Directives are Critical to your Planning

Advance Directives are Critical to your Planning

Advance directives address the type of healthcare and medical treatment you’d want if you become incapacitated. MarketWatch’s recent article entitled “What happens if you’re incapacitated? How to get your advance directives in order” says if you don’t make these decisions now—and complete the necessary forms to state your wishes—someone else will make the decisions for you down the road. Advance directives are critical to your planning.

Advance directives typically consist of a living will and a power of attorney for healthcare. Each state has its own statutory advance directive form. Because these state forms are legal documents, the wording can be pretty formal. People will sometimes forget they’ve filled out the forms. They also forget where they put them.

After completing the proper forms, you must get them to your medical providers, so they know whether to resuscitate you during a medical emergency or administer artificial feeding or hydration.

Make sure you have a discussion with your physician, family and close friends about your values, goals and fears concerning advance care planning.

You should tell them what forms of medical intervention you’d find acceptable and unacceptable—and what level of life-sustaining treatment you’d like if you’re deemed permanently unconscious. That may include considering these types of situations:

  • If I am unconscious, in a coma, or in a vegetative state and there is little or no chance of recovery
  • If I have permanent, severe brain damage that makes me unable to recognize my family or friends (for example, severe dementia)
  • If I need to use a breathing machine and be in bed for the rest of my life
  • If I have a condition that will make me die very soon, even with life-sustaining treatments
  • If I have pain or other severe symptoms that cause suffering and can’t be relieved
  • If I have a permanent condition where other people must help me with my daily needs (for example, eating, bathing, toileting).

When sharing your end-of-life wishes with your physician, he or she may enter your comments into your electronic health record. That way any other healthcare provider with access to those records (such as a hospital system) can retrieve them. Advance directives are critical to your planning. Work closely with your estate planning attorney, who will have the experience to help you navigate these decisions. If you would like to learn more about advance directives, please visit our previous posts. 

Reference: MarketWatch (Oct. 14, 2022) “What happens if you’re incapacitated? How to get your advance directives in order.”

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How are a Living Will and Advance Directive Different?

How are a Living Will and Advance Directive Different?

A comprehensive estate plan contains far more than a last will and testament. It also contains a number of documents to communicate wishes for decisions to be made during life. These include a living will, an advance directive and a healthcare power of attorney, as explained in the article “What Is a Living Will and Do I Need One?” from healthline. It is a common mistake to think that a living will and an advance directive are the same. They are not. How are a living will and an advance directive different?

What is a living will? A living will is a document providing instructions for medical care, or in some circumstances, for the termination of medical support. They indicate wishes for the use or discontinuation of life-sustaining medical treatments. The living will is used if the individual becomes incapacitated and cannot communicate normally. Incapacitation is determined and certified by a medical professional. Living wills address such treatments as resuscitation, hydration, a feeding tube and pain management.

Each state has its own rules for creating a legally valid living will. The information required in most states is:

  • Legal name and any aliases or nicknames.
  • The current day, month and year.
  • A statement attesting to being of sound mind and body.
  • Healthcare instructions for events with no reasonable expectation for recovery or quality of life, which may include CPR, DNR (do not resuscitate) and do not intubate (DNI).
  • The name of your healthcare proxy, the person who you want to communicate and state your wishes and the name of an alternate healthcare proxy, if you have one.
  • Witness statements indicating you willingly and rationally signed this document (the number of witnesses varies by state).
  • Your legal signature.

An advance directive is not the same thing but can include a living will. The advance directive has two parts: the living will and the healthcare power of attorney. These documents don’t address finances, property distribution, guardianship of children or any non-medical matters. For those, you need a last will and testament.

The healthcare power of attorney is a document identifying the person named to make healthcare decisions for you. It’s sometimes called a durable medical power of attorney. The person you name to make decisions is called your healthcare proxy, healthcare agent, or healthcare surrogate. This document does not address end-of-life care, but instead grants legal permission to the person to make decisions for you.

The living will, advance directive and healthcare power of attorney work together to allow someone else to represent you during a medical crisis. These documents should be created by an experienced estate planning attorney and shared with the people you choose, so they may act on your behalf. Unfortunately, we never know when a medical crisis or accident will occur, so these documents are needed at any age and stage of life. An experienced estate planning attorney can help you better understand how a living will and an advance directive are different. If you would like to learn more about drafting a comprehensive estate plan, please visit our previous posts.

Reference: healthline (Sep. 1, 2022) “What Is a Living Will and Do I Need One?”

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A Living Will is a Huge Benefit

A Living Will is a Huge Benefit

Having a living will is a huge benefit for yourself and your loved ones. During a medical crisis, families frequently must make decisions quickly regarding whether to withhold or provide life-sustaining treatments. A living will is a part of advance care planning. It’s a legal document that provides specific instructions on how to carry out your wishes to receive or decline such treatments when you otherwise can’t communicate those wishes yourself, explains, Forbes’ recent article entitled “How Does A Living Will Work?”

Your estate plan may already include a durable power of attorney for health care, which is a legal document that lets your designated agent or proxy make medical decisions for you if you become incapacitated. However, unlike that document, the instructions in a living will can be used only when the person named in the living will has no hope of recovery or cure.

A living will provides limited authority to an agent on behalf of the principal who’s no longer able to communicate their preferences to withhold or withdraw artificial means of life support or life-sustaining treatments. A living will should have your wishes noted for receiving or going without treatment when your condition isn’t expected to improve and treatment would extend your life for only a limited time.

A living will is designed to apply only in very limited situations when the principal who signed the document has an incurable or irreversible medical condition or conditions that will most likely result in the principal’s death within a short period of time—typically six months or fewer.

Life-sustaining treatments addressed in a living will may include:

  • Ventilators
  • Heart-lung machines
  • Nutrition via a feeding tube
  • Hydration via feeding tube or IV
  • Cardio-pulmonary resuscitation (CPR) or other extraordinary measures; and
  • Dialysis.

Living wills can also address issues, like pain management and palliative care. You may even include provisions such as “I would prefer to die at home” in a living will.

Provide as much information as you can to make certain that your proxy isn’t making the decision for you, but rather your wishes and words are moving through your proxy. A living will is a huge benefit to your loved ones. The more information you can provide in your living will to your proxy to illustrate for them the type of care that you’d want to receive or decline, the better. If you would like to learn more about living wills and other medical directives, please visit our previous posts. 

Reference: Forbes (Aug. 18, 2022) “How Does A Living Will Work?”

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Living Will and DNR are different Documents

Living Will and DNR are different Documents

A living will and a Do Not Resuscitate Order, known as a DNR, are very different documents. However, many people confuse the two. They both address end of life issues and are used in different settings, according to the article “One Senior Place: Know the difference between ‘living will’ and ‘do not resuscitate’” from Florida Today.

What is a Living Will?

A living will is a written statement describing a person’s wishes about receiving life-sustaining medical treatment in case of a terminal illness if they are a patient near death or in a persistent vegetative state. This includes choices such as whether to continue the use of artificial respiration, a feeding tube and other highly intensive means of keeping a person alive.

The living will is used to make your wishes clear to loved ones and to physicians. It is prepared by an estate planning elder care attorney, often when having an estate plan created or updated. To ensure it is valid and the instructions can be carried out, be sure to have this document created properly.

What is a DNR?

A DNR is a medical directive used to convey wishes to not be resuscitated in the event of respiratory or cardiac arrest. This document needs to be signed by both the patient and their treating physician. It’s often printed on brightly colored paper, so it can be easily found in an emergency.

The DNR should be placed in a location where it can be easily and quickly found. In nursing homes, this is typically at the head or foot of the bed. At home, it’s often posted on the refrigerator.

The DNR needs to be immediately available to ensure that the patient’s last wishes are honored.

A key mistake made by well-meaning family members is to have the DNR with someone else, rather than at home or at the bedside of the patient. If the DNR cannot be found and emergency medical responders arrive on scene, they are legally bound to provide CPR or other medical care to revive the patient.

When the DNR is available, the emergency responders will not initiate CPR if they find the patient in cardiopulmonary arrest or respiratory arrest. They may instead provide comfort care, including administering oxygen and pain management.

If a person is admitted to the hospital, their living will is placed on the chart. Depending on the state’s laws, a certain number of physicians must agree the patient is in a persistent vegetative state or has an end-state condition and can no longer communicate. At that point, the terms of the living will are followed.

In addition to having these documents created with your estate plan, make sure that family members know where they can be found. A living will and a DNR are different documents and your estate planning attorney can help you address which is the best option for your current situation. If you would like to learn more about living wills, DNRs and other medical directives, please visit our previous posts.

Reference: Florida Today (July 19, 2022) “One Senior Place: Know the difference between ‘living will’ and ‘do not resuscitate’”

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Even Young Adults Need a Will

Even Young Adults Need a Will

Even young adults need a will. Everyone, age 18 and older, needs at least some basic estate planning documents. That’s true even if you own very little. You still need an advance health care directive and a power of attorney. These documents designate agents to make decisions for you, in the event you become incapacitated.

The Los Angeles Daily News’ recent article entitled “Estate planning, often overwhelming, starts with the basics” reminds us that incapacity doesn’t just happen to the elderly. It can happen from an accident, a health crisis, or an injury. To have these documents in place, you just need to state the person you want to make decisions for you and generally what those decisions should be.

An experienced estate planning attorney will help you draft your will by using a questionnaire you complete before your initial meeting. This helps you to organize and list the information required. It also helps the attorney spot issues, such as taxes, blended families and special needs. You will list your assets — real property, business entities, bank accounts, investment accounts, retirement accounts, stocks, bonds, cars, life insurance and anything else you may own. The estimated or actual value of each item should also be included. If you have life insurance or retirement plans, attach a copy of the beneficiary designation form.

An experienced estate planning attorney will discuss your financial and family situation and offer options for a plan that will fit your needs.

The attorney may have many different solutions for the issues that concern you and those you may not have considered. These might include a child with poor money habits, a blended family where you need to balance the needs of a surviving spouse with the expectations of the children from a prior marriage, a pet needing ongoing care, or your thoughts about who to choose as your trustee or power of attorney.

There are many possible solutions, and you aren’t required to know them before you move ahead with your estate planning.

Young adults need a will. If you are an adult, you know generally what you own, your name and address and the names of your spouse and children or any other beneficiaries you’d like to include in your plan. So, you’re ready to move ahead with your estate planning. The key is to do this now and not procrastinate. If you would like to learn more about estate planning for young adults, please visit our previous posts.

Reference: Los Angeles Daily News (July 24, 2022) “Estate planning, often overwhelming, starts with the basics”

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Estate planning is vital for Unmarried Couples

Estate planning is vital for Unmarried Couples

Traditional or non-traditional couples have the option of marrying, but not all couples wish to, according to a recent article from Kiplinger, “Marriage: When You’d Rather Not.”  Planning for a life together without the legal protections provided by marriage means couples of all kinds who decide not to marry must be sure to do estate planning. Otherwise, they may find themselves in life-altering situations concerning property ownership, parental rights, and inheritances. Estate planning is vital for unmarried couples. It’s a gift to give each other.

Start with a last will and testament. Unmarried couples without children need a will, if they want to leave each other property. Otherwise, the laws of most states will have property going to the legal next-of-kin, which might be parents, siblings, or cousins. No matter how many decades the couple has been together, if they are not married, they have no legal inheritance rights.

Other estate planning basics are important to protect each other while living. Without documents like a financial power of attorney and a health care proxy for both partners, medical and other health care providers might not allow your partner to make critical health decisions on your behalf. For couples where families disapprove of their unmarried status, asking a parent to make these decisions, especially in an emergency situation, could magnify a crisis or worse, lead to a result neither partner wants.

Accounts with named beneficiaries, which typically include life insurance policies, retirement funds, investment accounts and similar financial products, aren’t distributed by the terms of your will. Instead, they pass directly to beneficiaries on death. Even traditional married couples run into trouble when beneficiary designations are not updated.

Every time there is a life change, including death, birth, break-up, or any big life event, updating beneficiaries is a good idea for all concerned.

Unmarried couples with children need to be especially diligent about estate planning. If a biological parent dies, their assets go to their biological children. However, when the non-biological parent dies, all of their assets could go to other relatives, unless a will is in place and beneficiaries are properly named. What about if the non-biological parent takes the step of legally adopting the children? They should still check on their parental rights. If accounts do not have beneficiaries named, the assets will go to next of kin, a parent or sibling and not the child or partner.

Home ownership is another financial issue to tackle for unmarried couples. They need a document clearly stating how the home is owned, how much each invested in the home, who is responsible for mortgage and tax payments, how to divide the home if it’s sold and who has the right to live in the home if the couple breaks up or if one dies or becomes disabled. If a home is solely in one person’s name and the other partner dies, the surviving partner may end up being evicted if the right protections are not in place.

For unmarried couples, meeting with an estate planning attorney is vital to protect each other now and in the future. If you would like to read more about planning for unmarried couples, please visit our previous posts. 

Reference: Kiplinger (June 16, 2022) “Marriage: When You’d Rather Not.”

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Information in our blogs is very general in nature and should not be acted upon without first consulting with an attorney. Please feel free to contact Texas Trust Law to schedule a complimentary consultation.
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