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The Eldercare Advocate-Senior Legal Planning: What Do You Know?

May 20, 2020|advanced directive, aging, Aging Parents, caregivers, Cognition, competency, dementia, durable power of attorney, Eldercare, elders, health care proxy, informed consent, legal documents, legal planning, living will, MOLST, nursing homes, POLST, power of attorney

No doubt the coronavirus situation has made us all more aware that situations with our health and well-being are fluid and can be impacted in ways that we never anticipated. How many people/families were legally or financially prepared for the emergency situation which they faced. Beyond the virus situation, we all have to address these issues, but especially families with older parents or loved ones. There are many considerations and information that is essential to understanding this landscape, the terminology, documents that need to be completed. Oftentimes, families are at odds with each other as well as the decisions needed to be made. Admitteldy these are difficult decisions to make and difficult conversations for an individual or a family to have. If we learned anything from the current pandemic situation, they are extremely necessary. Therefore, it is imperative that people PLAN BY CHOICE, NOT BY CRISIS. 

Basically, planning falls into two major areas: financial and health care.

Legal Financial Documents 1.  Power of Attorney 2.  Durable Power of Attorney 3.  Trusts and Wills.

Power of Attorney:

It’s important to note that a person may choose to have two Power of Attorney Documents, one for legal/financial matters, the other for healthcare. Therefore, in this category you would be asking for a Financial Power of Attorney. It is also important to know that a person may be capable of signing a Power of Attorney, though they may not be able to manage or make decisions regarding their affairs. 

1. Power of Attorney-allows an individual to select the person of their choice to make decisions on their behalf. However, the document may limit the powers given to the person selected. The act of signing a power of attorney does not automatically mean that the signer has given over all power to the person designated. 

2. Durable Power of Attorney – This document remains in effect if the person becomes incapacitated in some way and is no longer able to act on their own behalf, which is often associated with lacking capacity. 

This person may oversee financial matters from daily bills and expenses to managing investments. 

3.Trusts/Wills – These important documents have to do with your estate and provides information about your wishes regarding distributing your belongings and assets, etc. Your estate consists of everything you own, including bank accounts, your home, car, jewelry, furniture, etc. It also consists of everything that is owed for mortgages and major debts. These will be paid prior to any assets being disbursed. 

In the event you are a do-it-your-selfer, you can find these documents online at LegalZoom, RocketLawyer or Nolo However, these documents can be confusing it is best to consult with an attorney who may provide insights and be able to answer any questions you may have. 

Health Care Documents 1.  Living Will/Advanced Directive 2.  Health Care Proxy 3.  POLST/MOLST – DNR, DNI, DNH 4.  Informed Consent

1.Living Will/Advanced Directive – A living will is a written legal document which describes in detail a person’s wishes regarding their medical treatment in circumstances in which they are no longer able to express informed consent, and specifies the medical treatments you want, or do not want, to keep you alive in end-of-life circumstances.  It also directs the physician regarding pain management, organ donation. These decisions are difficult ones to make and are often based in cultural, religious beliefs. 

2. Health Care Proxy – This document allows a person to make critical medical decisions on behalf of another as well as to guide medical treatment. If the person becomes unable to make or communicate those decisions for him/herself. This person is commonly referred to as the agent or agents, if there is more than one person. The laws governing the health care proxy may differ by state and in some cases, the health care proxy (known as the agent) begins only when the physician provides written documentation that the person lacks the capacity to make or communicate health care decisions. It is recommended that everyone over the age of eighteen should complete a document for a health care proxy.

3.POLST/MOLST: Physicians Order for Life Sustaining Treatment or Medical Order for Life Sustaining Treatment –This legal document provides specific instructions that are to be followed at the end stages of a serious illness or when a condition deteriorates into frailty at the end-of-life. These are critical decisions that are best made between the individual and their physician. The form is a medical order and is always signed by a doctor, and in some states, by the patient as well. It is worth noting, that the POLST/MOLST form can be used by doctors, and first responders which would include, paramedics, fire departments, police, emergency rooms, hospitals, and are transferrable to nursing homes. They are also known by other names such as MOST (Medical Order on Scope of Treatment) POST (Physicians Orders on Scope of Treatment) or TPOPP (Transportable Physician Orders for Patient Preferences. They may take the place of a Living Will or Advanced Directive. This includes information on DNR - Do Not Resuscitate; DNI - Do not Intubate which refers to a procedure to help a person to breathe when they cannot do so on their own; DNH- Do Not hospitalize. 

4.Informed Consent – This form is a legal document that basically verifies that the patient has participated in the decision-making process regarding their own medical procedures, interventions or treatment and the risks, benefits, and/or alternatives related to them. This is based on the education provided by, and communication between, the health care provider, nurse or doctor, and the patient. The patient signing the document should be able to make a voluntary decision about undergoing said procedure/treatment. Though one may view the decision as a poor one, or disagrees with the decision, should not be confused with whether or not the person is competent.

In the event you would like to hear an Elder Law Attorney describe these documents and applications for their use in simple terms. Tune in to the May 18, 2020 episode of Voices for Eldercare Advocacy on the Voice America Empowerment Channel. The episode can also be downloaded on ITunes, IHeartRadio, Stitcher, Google Play.

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