Who would make legal, medical, or financial decisions for you if you were no longer able to make them for yourself? This is a question that all seniors should consider before such a situation arises. Failing to discuss this with your loved ones and put your wishes into writing can lead to an array of issues. Let’s explore elder guardianships and the importance of creating legal documents that make your preferences clear.
Elder guardianship explained
Elder guardianship is a legal process that can be put into motion when a senior is unable to make decisions for themself or communicate their wishes about healthcare-related matters, financial issues, property, and so forth. Once an elder guardianship is put into place through the court system, granting another person or entity the ability to make such decisions for a senior, a person’s individual right to manage their personal affairs, finances, and/or property is removed.
While this can be an important process to help protect the safety and wellbeing of a senior in certain situations — if the person has become incapacitated or suffers from dementia, for example — there also have been cases where elder guardianship has been abused and used to take advantage of vulnerable seniors.
Important legal documents every senior needs
While such instances of abusing the system are rare, seniors can help avoid these types of scenarios through effective communication with their adult children and putting their wishes in writing before any such situations arise.
There are several documents that every senior should have in place so their family understands and can abide by the senior’s end-of-life, healthcare, and financial wishes.
Power of attorney
Power of attorney is a legal document, typically created with the assistance of a lawyer, in which the “principal” (you) assigns certain powers to an “attorney-in-fact,” also known as an “agent” or “proxy,” giving that person legal authority to make decisions for you if you become mentally or physically incapacitated.
The attorney-in-fact can be whomever you choose: a spouse or partner, an adult child or other relative, or even a friend, but the most important criteria is that it should be someone you trust to act in your best interest with any decision they make on your behalf.
There are general powers of attorney, which give the attorney-in-fact authorization to take care of nearly all of the principal’s personal and financial affairs. There also are subcategories of power of attorney, referred to as specific power of attorney, that give the attorney-in-fact the power to handle only particular issues. These include:
- Special power of attorney: Grants the attorney-in-fact control over only one named task (for instance, selling a home or running a business).
- Durable power of attorney for finances: Gives the attorney-in-fact the ability to make financial decisions for the principal.
- Durable healthcare power of attorney (also referred to as a healthcare proxy or healthcare surrogate): Allows the attorney-in-fact to make healthcare-related decisions should the principal become mentally or physically unable to make choices for themself. In most cases, a physician must determine that the principal is unable to make their own medical decisions before a healthcare power of attorney can go into effect.
Advance directives (also called a living will)
Advance directives are a written document used as a guide for healthcare-related choices made by your doctors and caregivers if you should become unable to make them for yourself. Common instances of this would be for a person who is terminally ill, seriously injured, in a coma, in the final stages of dementia, or near the end of their life.
When creating advance directives, you may be as general or as detailed as you wish. Including more specificity can be useful to your doctors, your family, and your care decision-makers, however. Having your preferences in writing is an absolute. It is also powerful to be able to have the conversation with the person you are entrusting to make these sometimes very difficult decisions. Including your preferences on organ and/or tissue donation within the document can also alleviate questions and doubts when the time comes.
The laws and forms required to create this legal document vary from state to state, with some requiring a witness and/or notary signature, but advance directives should always be put in writing. While some people may want to consult a lawyer when creating their advance directives, it is typically a document you can create on your own. The CaringInfo website has a free downloadable advance directives form and state-specific instructions.
Will or trust
A will (sometimes called a last will and testament) is a legal document that provides guidance on how your estate (money, property, and possessions) should be handled when you die. When a will goes into effect, your assets must go through a legal process called probate. Probate confirms the authenticity of the will, records and appraises the possessions/property, pays out any debts and/or taxes, and lastly, distributes the remaining assets based on the directions contained in the will.
A trust is similar to a will in many ways; it provides directions on how you want your estate to be distributed after your death. A trust, however, also provides guidance on how your assets should be managed if you should experience any periods of incapacity during your lifetime. When you die, a trust typically can bypass the probate process, which would make your assets available to your beneficiaries more quickly.
>> Related: 4 Must-Dos of Retirement Planning
Making your preferences known
By creating these important legal documents, you and your families are better protected against a situation that could result in a third party or a person you have not chosen for yourself obtaining an elder guardianship order. This also can help you and your loved ones avoid a lot of heartache as well as a lot of legal expenses as petitioning the court to obtain guardianship can be costly and time-consuming if these documents are not already in place.
It is wise to consult with your attorney and your accountant when making these kinds of important decisions about how your care and finances will be handled as you age. An elder law attorney or geriatric care manager is also a good resource to consult for more information about elder guardianship.
Once you finalize your legal documents, you should:
- Keep the originals in a safe but easily accessible place
- Give copies to your attorney
- For powers of attorney (see power of attorney section above), give a copy to your attorney-in-fact and/or healthcare attorney-in-fact
- For advance directives (see advance directives section above), give a copy to your physician, and if you live in a continuing care retirement community (CCRC or life plan community), give a copy to the healthcare facility
- Make a note of who has copies of your documents should you decide to amend/update them
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