Estate planning is a complex subject, and special issues arise when developing an estate plan for older persons. Every estate plan should be carefully customized to an individual’s situation, so learn more by consulting an elder law attorney before taking any measures that may impact your legal rights or the rights of your heirs and beneficiaries.
Legal documents every adult should have
- Durable Financial Power of Attorney
A durable financial power of attorney appoints an agent or agents to manage your financial affairs immediately or in the case of incapacity. Many elderly rely on close family to help them manage their finances. If this is the case, you may want to consider making the financial power of attorney effective immediately so that you and the agent have concurrent ability to manage your financial affairs.
In the case of your incapacity, it is equally vital to have a complete and recently executed (within the previous 3-5 years) financial power of attorney to prevent Conservatorship (court procedure). Elders are more vulnerable to incapacity than the general population, and there are frequent Conservatorships for elders who had no financial power of attorney in place before the beginning of catastrophic sickness or disability.
Finally, suppose you are concerned about affording long-term care. In that case, an elder law attorney familiar with public benefits may want to include specific authority for the agent to apply for these benefits in the event of future need and engage in “spend-down” to preserve your assets against the cost of long-term care, including expansive gifting language not typically included in the power of attorney documents drafted by estate planning attorneys.
- Health Care Power of Attorney
This power of attorney appoints an agent to make medical decisions if you cannot do so yourself. Without this document, state law selects individuals with priority to act who may or may not be the individuals you wish. Without this document, you are also more likely to be the subject of a Guardianship (court case).
- Mental Health Care Power of Attorney
If you have a Mental Health Care Power of Attorney, your agent (s) can consent to in-patient mental health treatment on your behalf if necessary. This instrument eliminates the necessity for a judicial process for emergency mental health guardianship. In-patient mental health therapy may be required for seniors in particular, owing to the impact of medical disorders such as dementia, Alzheimer’s disease, Lewy Body dementia, Parkinson’s disease, brain damage, and others.
The legislation establishing mental health power of attorney was enacted to allow seniors, in particular, admittance to psychiatric facilities specializing in elder care without court interference, thus avoiding court-ordered treatment and hospitalization with younger mentally ill patients. If you never require this therapy, that is fantastic. However, if you do require this degree of mental health therapy, this contract permits your agent to consent to the treatment you require without the intervention of a court or the state government.
