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Protect yourself and your aging parents with a Durable Power of Attorney and advanced directive

 

The term “sandwich generation” refers to individuals, typically those in their 30s or 40s, sandwiched on both sides by the people they need to care for. On one side are their children, both teenagers and adult children, who still need financial support.

The other side of the equation involves caring for aging parents, especially those who suffer from a debilitating illness. For individuals over the age of 65, advanced dementia is the fifth leading cause of death. Those who suffer from dementia lose the ability to communicate with their loved ones, handle their own finances, and voice their own opinions or make informed decisions on medical recommendations doctors are making for their care.

One of the many tragic aspects of Alzheimer’s and other forms of advanced dementia is that patients are often no longer able to make decisions on their own. Implementing key estate planning documents can help to guard against the risk making the tough (and often very expensive) decision to have a loved one declared incapacitated by a court of law.

Whether you are thinking about your estate plan or the estate plan of an aging parent, a Durable Power of Attorney and advanced directive can be important legal documents to consider in order to preserve financial freedom and long-term medical wishes.

 

What is an advanced directive?

An advanced directive allows people to articulate what types of medical care they do and do not want when they are no longer able to do so on their own. These documents typically become effective after a sudden, serious accident or during end-of-life care.

There are three main types of advanced directives that people may want to consider implementing within their estate plan:

1. HIPAA Release

The U.S. Government created a privacy rule under the Health Insurance Portability and Accountability Act (HIPAA) to help protect your personal health information from being shared when it shouldn’t be.  Signing a HIPAA Release gives your doctor the ok to share your medical information.  Unless you provide your doctor with a signed release form, he/she is prohibited from discussing any aspect of your medical information with anyone (family, hospitals, other doctors, medical research teams, etc.) who are not directly involved in your care.

2. Health Care Surrogate

Allows you to name someone you trust to make informed medical decisions on your behalf in the event you become incapacitated. The types of decisions range from surgical options to selecting a nursing home.

3. Living wills

The living will is a document that allows you to state your requests to health care providers regarding artificial life support and other end-of-life medical decisions.        

What happens when there is no advanced directive?

Not every individual who is receiving medical care while incapacitated has taken the time to establish an advanced directive. In these instances, the court may appoint a spouse, child, family member or close friend to serve as a guardian.

When people fail to articulate precisely the types of care they want, the appointed guardian may struggle to make the right decisions.

What is a Durable Power of Attorney?

A Durable Power of Attorney immediately appoints a person of your choosing to handle your legal and financial affairs in your stead.  This document allows the person (your agent) to pay your bills, manage your investments, sell your property, sign contracts and conduct other business on your behalf.

You should not sign a power of attorney document without understanding the broad range of power it gives your agent and ensuring that the powers are clearly stated and strong enough to be useful, but not so broad that they encourage overstepping, fraud or depletion of your estate.

What happens when there is no power of attorney?

If you become incapacitated and don’t have a power of attorney appointing a person to handle your financial and business affairs, you family will have to petition to the court to be designated as your legal guardian.  This is a legal process to appoint a person to step in to your shoes, as your guardian, to handle your financial affairs under court supervision and approval.

Many people put off creating a power of attorney or advanced directive or even talking about the subject with their aging parents. That is understandable; it is a difficult conversation and no one enjoys reflecting on their mortality.

However, taking the time to establish a power of attorney and advanced directives can give you greater peace of mind that your wishes are going to be carried out, no matter what happens in the future.

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Brandon Family Law Center, LLC
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