Key Legal Terms and Documents Needed to Advocate for Your Elder

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Key Legal Documents

These documents are Key to being able to work on behalf of your parent or loved one.  Check to see what legal planning your loved one has completed.  Do they have a Financial and Healthcare Power of Attorney designated?  A Financial POA is the person who can take over handling finances when a loved one becomes incapacitated.  A Healthcare Power of Attorney designates who will make the healthcare decision if your loved one becomes unable to speak for themselves.

In the US, if you do not have a Healthcare POA, a doctor does not have to talk to you or consider your suggestions.  A spouse cannot advocate for their partner without it.  It is critical that these documents be in place to be able to advocate for your loved one in a hospital, senior residence or in the doctors office.

Another piece of legal planning involves whether they have filled out a Living Will or Advance Directive? This document spells out what you want or do not want to be given medically at end of life when there is no possibility of recovery.  If your loved one becomes incapacitated by a stroke, heart attack or coma, you will need to know what their end of life wishes are so you can communicate them to medical personnel.

Do they have a Trust or Will?  A Trust is an entity that stands by itself and continues to operate even if the person is incapacitated or dead.  A Will will have to be probated through the courts and if  no Will has been found, the estate of the deceased will be distributed according to the laws of the courts.  Many times couples have failed to plan and when the husband dies, the wife assumes that she will receive the bulk of the estate.  However, without a Will or Trust, 50% will go to the wife and 50% to the children.  Make sure that surviving spouse is protected with the proper legal documents.

Key Legal Terms

Capacity is a term that is important to understand.  Capacity is used when a person is determined to be a danger to themselves or others.  When a person is determined to be incapacitated, usually one or two physicians must testify to the fact that they are unable to take care of their own affairs and that someone should be appointed to speak on their behalf regarding their affairs.  This is not done lightly.

If a person has not done the legal planning in advance and then they become unable to handle their own affairs, Guardianship may be required.  For instance, if your loved one has dementia and has not completed these documents, then you will have to file with the courts for guardianship or to have the courts appoint a guardian.  The guardian is liable for using the person’s estate to pay for their expenses and care and is accountable annually to the courts for every penny spent.  Each state handles guardianship differently so you will have to talk to your attorney about how it is handled in your area.

You will need to know who your loved one has been using to do their legal work.  They are called the attorney of record.  The attorney of record is the one who assembled the Will or Trust or the Power of Attorney documents.  .

If these items have not been completed, they must be addressed immediately. I cannot emphasize this enough!  If your loved one is in the early stages of dementia, they may still have the capacity to sign on their own behalf if you catch them on a good day when they are lucid.  Attorneys are trained to be able to make that assessment.

Make sure that your loved one has completed a Financial and Healthcare Power of Attorney and filled out an Advance Directive.  Then bring those documents with you any time you enter a doctor’s office, governmental agency, hospital or senior facility. 

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