Advanced Directives – Do I need a lawyer?

Pat ThorneEducation, Family Caregiving, General InformationLeave a Comment

” It Depends…”

That was the answer the attorney gave to a caregiver at the elder law seminar I recently attended.  A very frustrating and unhelpful response but it is the right one. But what does “it” depend on?

Well everyone’s circumstances are different and laws vary widely from state to state, so a lot depends on who you are and where you live. But I thought I would take some time to help walk you through a better understanding of the “it depends” answer. Now I am just giving you some general information and I am not providing any legal, financial or medical advice.

Advanced Directives

To begin with Advanced Directives are those instructions you put in writing ahead of time regarding your medical, legal and financial affairs. These instructions can be very specific or very broad and usually identify an “agent” who can make decisions on your behalf. These legal documents cover a wide range of areas and would take more space than I have here to explain. So if you need to learn more about them, Click Here for my free worksheet describing the various forms of Advanced Directives.

 

When the answer is Yes – you need a lawyer

A general rule is that any document that involves your money and / or your property should be prepared or at least reviewed by an attorney. These include your will and any general and/or financial power of attorney (POA). These documents can give your agent very broad powers so you will want to be sure that you choose someone you trust and that your wishes or any limitations to their power are clearly expressed. As a caregiver be sure you understand when and how these documents were prepared, who is the named agent and what they can and can not do regarding your loved one’s money and property. Poorly written or outdated documents can create undue hardships for many family caregivers and are usually not discovered until it is too late to change them.

Warning don’t be like my client Mary

Mary was the caregiver for her spouse Joe who had advanced Alzheimer’s disease. Prior to his disability Joe had named Bob, his son by his first marriage, to handle all of his financial affairs. Mary, overwhelmed with the burden of full time care giving, wanted to hire someone  to provide her the break she desperately needed and knew they could afford. But sadly, Bob refused to sign the contract authorizing payment for the additional caregiver services. Not only that but Bob had moved most of the money out of Joe and Mary’s joint account so Mary no longer had access to it. Since Mary could not afford to hire an attorney to fight for her rights and to mediate  the dispute she was left to struggle with caring for Joe on her own.

When the answer is Maybe you don’t need a lawyer

Medical advanced directives do not go into effect until the individual is physically or mentally incapable of making their own decisions. Because their scope is very specific and limited there are many standard forms available making it easy and inexpensive to create, change and update. Standard forms are available online or from a hospital or doctor’s office. If you decide to use a standard form then here are some key points to consider to  avoid any issues down the road.

  • Use the form recognized by your state (click here to find you state’s forms).
  • Be sure you have read and understand the document before signing
  • Cross out any provisions that you do not want or do not apply
  • Add specifics about any wishes or requests not stated.
  • Have the document properly witnessed and notarized (if required by your state)
  • Do not keep it a secret. Make sure everyone involved in your loved one’s care knows and understands what the document states. It is best to resolve any issues while your loved one is physically and mentally able to assure them that the document accurately reflects their wishes.

 

Warning don’t do what Agnes did – or didn’t do

Agnes had a very complicated family. She had adult children who didn’t get along and a “never legally divorced from” ex-husband. Agnes’ primary caregiver was her granddaughter Rebecca. Rebecca lived with Agnes, took her to all of her appointments, managed her medication and was the only family member actively involved in her care. Agnes trusted Rebecca to make her medical care decisions when she couldn’t and wanted her to inherit the home they lived in together.  But Agnes never got around to putting any of this in writing and Rebecca, as her caregiver didn’t insist on it to protect her own rights.  So the day Agnes had a stroke and later died it was not Rebecca but Agnes’ “legal next of kin” her not legally divorced from husband, who made all of the medical decisions and it was he with his children who inherited the house and all of her money. Rebecca needed to find a new place to live.

 The moral of the story – even a poorly written document is better than none and having an attorney to ensure that it is all in order is usually money well spent.

I hope you found this helpful. Please be sure to send me your questions and feedback by clicking on the comments word above.

So until next time – take care of yourself and know that there is

…help for the journey

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