Legal Issues and Planning for the Future

 

Ensuring that proper legal issues have been taken care of is very important in planning for the future. It can make your life easier and can help to ensure that your family member's rights are protected and that his or her wishes are honored.

Some of the information below is generic. Remember that laws differ from state to state. Be sure to check in your state to ensure that your choices are legally binding.

 

 

Mother and Daughter

 

 

Financial Steps for Caregivers -
What You Need to Know About Money & Retirement

A booklet has been developed detailing what you need to know about money and securing your retirement as you make changes to your financial situation due to caregiving responsibilities. It was developed under a grant from the Administration on Aging, as part of the National Education and Resource Center on Women and Retirement Planning by the Women's Institute for a Secure Retirement (WISER).

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The website contains a wealth of information on retirement and how to plan for your financial security in retirement - all designed with women in mind.

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Estate Planning

What is estate planning? Your estate is everything you own. Estate planning is the process of creating a blueprint of how you want your financial and personal affairs handled after you can no longer handle them yourself. Personal affairs are included because they often are directly linked to how your financial and personal property affairs are handled. Part of the process is to minimize the effect taxes will have on the final disposition of your property.

Estate planning is the process of making many decisions,decisions about:

  • your property
  • people who depend upon you for support
  • possible future incapacity
  • medical decisions you may or may not want
  • long-term care options
  • funeral, cremation, memorial arrangements
  • miscellaneous issues such as pet care
Nest Egg
Estate planning may be complicated. Caregivers rarely have the time to devote to the research that would be needed to make sure that all needed items were addressed. Therefore, it is important to consider professional help. Some attorneys specialize in this area. To find a specialist and/or legal council, contact your state Bar Association.

 

 

If you need an attorney willing to work pro-bono, or without pay:

 

Other professionals may be called upon to assist such as your:

  • life insurance agent
  • accountant or tax adviser
  • trust officer
  • financial planner

Yet another legal avenue to help you manage your affairs is Joint Ownership of Personal Property. This type of arrangement is easy and inexpensive to set up but may have legal and tax consequences. Laws vary from state to state. Again, discuss this option with a trusted estate planner.

 

Other online resources:

In order to properly develop an estate plan, detailed financial and personal information will be necessary. This information will need to be verified. If detailed financial and personal records have not been kept, information will need to be duplicated.

 

NC The NC Department of Health and Human Services' Vital Records Unit (919-733-3526) keeps track of births, deaths, marriages and divorces occurring in North Carolina and will provide copies. There is a small fee for this service.

In some counties, the local Health Department keeps copies of birth and death records. (Note: In Durham County, the Register of Deeds performs this function. 919-560-0495)

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Trusts

A trust is a legal arrangement where a person transfers legal ownership of property to someone else to hold and manage. There may be legal, tax and/or inheritance benefits to setting up a trust. It is best to discuss this with a trusted estate planner before making any decisions about trusts. You should know about the benefits and the caveats.
Living Trust

 

For more information:

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Powers of Attorney

There are several types of Power of Attorney.

Durable Power of Attorney is a legal document that allows you to choose a person to handle your affairs should you become incompetent and/or incapacitated.

Non Durable Power of Attorney is a legal document that allows you to choose a person to handle your affairs that becomes invalid should you become incompetent and/or incapacitated.

Health Care Power of Attorney is a legal document that allows you to choose what type of health care measures you want or do not want. It should be used in conjunction with a Durable Power of Attorney and a Living Will.

There are specific forms to complete for each of these legal "transactions". Consult with an attorney, if necessary. Be sure to read each form carefully and make sure you fully understand what it means before signing since these documents are legally binding. Also note, that the Health Care Power of Attorney document may need to be updated from time to time. As states change their laws related to Advance Directives, the specific indicators of health care intervention desired may change.

Laws vary from state to state so be sure that you update your Powers of Attorney if you move to another state.

To see a copy of a typical Health Care Power of Attorney form, use the link below. Your state may have a different version. Check with your attorney to get a copy of your state's form or go online and search for legal forms.

 

Another facet of pre-planning for health care incapacity is Advance Instruction for Mental Health Treatment. This directive applies only to mental health care.

 

Remember, these documents may be revoked at any time.

For more information:

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Wills

Will
A Will is a legal document that will tell the court how you want your property distributed when you die. It allows you to decide who shall receive your property and what share they will receive.

 

 

NC In North Carolina, if you don't have a Will and you die, your property will be distributed by the state as follows:

  • surviving spouse
  • children or their descendants
  • parents
  • siblings or their descendants
  • 50% to Father's side of family and 50% to Mother's side of family
    • grandparents
    • Aunts and Uncles or their descendants
  • State of North Carolina

 

It is important for everyone to have a legally valid Will. The information provided in the link above will explain how to draft a Will without legal representation. The disadvantages of that are also identified. Should you feel that you cannot afford to have a professional help you with your Will, contact your state Bar Association for a referral to an attorney who may be able to assist you at no cost.

 

There is another document that would be helpful to draft to go with the Will. It is called the Last Will and Testament Letter of Instruction. This document provides the Executor of the estate and any beneficiaries additional and more detailed information regarding your estate.

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Living Will

A Living Will or Declaration of a Desire for a Natural Death gives your doctor permission to withhold or withdraw life support systems under certain conditions. It should be used in conjunction with a Durable Power of Attorney and a Health Care Power of Attorney to be most effective.

Recent legal cases have shown that some doctors and some health care workers, such as ambulance technicians, hesitate to honor Living Wills (especially if a Do Not Resuscitate order has not been filed). Make sure to discuss your wishes with your doctor and your family members. They should have a copy of your Health Care Power of Attorney and your Living Will.

To see a copy of a typical Living Will form, use the link below. Your state may have a different version. Check with your attorney to get a copy of your state's form or go online and search for legal forms.

 

Laws vary from state to state so be sure that you update your Living Will if you move to another state. Check with your state Bar Association for more information.

 

In conjunction with a Living Will, if your family member has a terminal illness or is in a persistent vegetative state, talk to your family member's doctor about a Do Not Resuscitate order.

NC Keep in mind that, in North Carolina, requirements may vary from county to county so be sure to check to find out what you need to make sure your wishes are honored. For more information, call the Office of Emergency Medical Services (part of the NC Division of Facility Services) at 919-855-3935 or review NC Senate Bill 703 (2001).

Be aware that unless you have a "Do Not Resuscitate" order, signed by the patient's doctor and available to give to an Emergency Medical Services worker (ambulance workers and/or 911 personnel), they must try to resuscitate the person needing assistance. Some emergency services workers feel that it is their duty to try to resuscitate a person even if an order is in place. They feel that the decisions about life support should be made by the attending physician(s) in conjunction with the family after the person has been transported to a medical facility.

 

The American Bar Association offers the following:

 

Sometimes families make a Living Will but have trouble keeping up with the documentation. One resource is an online registry that will be available only to your Doctor.

NCIn North Carolina, the Department of the Secretary of State offers an online Advanced Health Care Directive Registry. For a $10.00 fee for each transaction, you may register online for a Health Care Power of Attorney, a Living Will, a Mental Health Directive, and Organ/Tissue donation. After registration, to access the information online, a person would need a file number and a password. This limits access to individuals to whom you have given authorization.

 

If you do not have a Living Will, most states have legislation that spell out what will occur.

NCIn North Carolina, the person must be shown to be comatose or mentally incapacitated. The attending physician must determine that the person's present condition is terminal; incurable; irreversible; and this must be confirmed by another physician, in writing. It must be confirmed, as well, that a vital function could only be restored by extraordinary means or is only being maintained by extraordinary means. Again, the physician makes the final decision about life support.

 

 

 

 

 

It is critical that you discuss your desires and choices with your attending physician before there is a problem if you want to have the best possible chance of having your wishes honored. And, having the appropriate documents completed, notarized, registered, and distributed will further ensure that your choices are carried out.

For more information:

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Psychiatric Advanced Directives

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Psychiatric advance directives (PADs) are legal instruments that may be used to document a competent person’s specific instructions or preferences regarding future mental health treatment, in preparation for the possibility that the person may lose capacity to give or withhold informed consent to treatment during acute episodes of psychiatric illness. Typically, these instruments authorize a surrogate decision maker with Durable Power of Attorney for Healthcare to act in accordance with an incapacitated patient’s previously-expressed wishes, known values, or to act in the patient’s best interest if the patient’s preferences are unknown.

Advanced Directives were designed, in general, to control decisions about end-of-life healthcare, e.g., to limit life-sustaining medical interventions that fail to provide a meaningful quality of life for terminally ill patients. However, these legal instruments have significant limitations when applied in the context of mental health treatment for incapacitated psychiatric patients. This is especially true when the mental capacity of the individual fluctuates. PADs allow psychiatric patients to document in advance, while competent, their acceptance or refusal of particular types of mental health treatment and intervention. They provide a legal remedy for uncertainty and the challenges that may arise when dealing with a person experiencing an acute episode.  PADs also help protect patient rights in long-term care facilities and/or other care facilities.

Almost all states permit some form of legal advance directive (AD) for healthcare, which can be used to direct at least some forms of psychiatric treatment. PADs offer a way to be specific and be even more legally binding.

 

North Carolina has statutes explicitly authorizing psychiatric advance directives. The North Carolina Advance Instruction for Mental Health Treatment was passed in 1997. The advance declaration goes into effect only “if it is determined by 2 physicians or the court that [the principal’s] ability to receive and evaluate information effectively or communicate decisions is impaired to such an extent that [the principal] lacks the capacity to refuse or consent to mental health treatment.” Duke University and the University of North Carolina are both part of this effort to educate and promote PADs.

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Revocation of Health Care Directives and Living Wills

Remember, these documents may be revoked at any time. The NC Bar Association gives these steps:

"You may revoke your living will by communicating this desire to your doctor. You may use any means available to communicate your intent to revoke. Your mental or physical condition is not considered, so you do not need to be of sound mind. Someone acting on your behalf may also tell your doctor that you want to revoke your living will. Revocation is effective only after your doctor has been notified.

Destroying the original and all copies of your living will may revoke your living will as a practical matter. However, if you have discussed this issue with your doctor, be sure to tell your doctor that you have revoked your living will.

If you sign a new living will, be sure to revoke all prior living wills that may be inconsistent with your new living will."

If you register online, be sure to revoke your documents online as well.

As a practical matter, it is critical that you discuss your desires with your doctor since he or she will be the one in charge of your care and will ultimately decide what happens. The best way to ensure that your wishes are carried out is to have:

  1. a doctor who agrees with your choice and has a copy of all relevant documents related to that choice in your file;
  2. have all advanced care documents (a living will, health care power of attorney, durable power of attorney, advanced instructions for mental health treatment, and do not resuscitate orders) all signed and, preferably, notarized; note: give your doctor a copy, your family a copy, your attorney a copy and keep one in a safe place;
  3. family members informed and in agreement with your choice;
  4. a copy of your directives to your attorney, if you have one.

Be sure to discuss with your family and important family friends what you want done if 911 needs to be called or if you are suddenly rushed to the hospital. That is the most likely way to ensure that your wishes are honored. Remember, you may not be in any condition to ensure that the level of life saving measures you intended are honored. And, unless you have a "Do Not Resuscitate" order, signed by your doctor and available to give to an Emergency Medical Services worker (ambulance workers and/or 911 personnel), they must try to resuscitate you.

NC Requirements may vary from county to county in North Carolina (especially for "Do Not Resuscitate" orders, NC Senate Bill 703). For more information, call the Office of Emergency Medical Services (part of the NC Division of Health Service Regulation) at 919-855-3935.

 

For more information about Do Not Resuscitate orders:

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Guardianship

If your family member becomes incapacitated, either temporarily or permanently, his or her affairs still need to be handled and decisions need to be made. If no Durable Power of Attorney or other arrangement has been made for the handling of affairs, you may have to petition the court for guardianship of your family member. A competency hearing will be held. If your family member is found to be incompetent or unable to handle their affairs, a guardian will be appointed (which may or may not be you) and the person will no longer have the legal right to manage his or her affairs.

This is one of the reasons why it is so important to pre-plan for incapacity. Guardianship proceedings may be expensive and cause hurt feelings within a family.

There are some less restrictive alternatives that should be considered before pursuing guardianship:

  • Representative or Protective Payee
    a person who is appointed to manage Social Security, Veterans' Administration, Railroad Retirement, Welfare Assistance or other state or Federal benefits or entitlement program payments on behalf of an individual.

  • Conservatorship
    a voluntary proceeding in which a person (the conservatee) asks the Probate Court to appoint a specific individual (the conservator) to manage his or her estate. The Court must find the petitioner incapable of managing his or her financial affairs, but capable of making the decision to have a conservator appointed to do so.
  • Power of Attorney
    a contract between two individuals where one party (the principal) gives to the other (the agent) the authority to make any number of decisions (e.g. medical, placement, financial) on his or her behalf. The person granting the power of attorney must be mentally competent to enter into the contract. If the contract is made "durable," the power of attorney remains in effect if the principal becomes mentally incapacitated.

The court should ask whether all other alternatives have been explored before guardianship. However, to best insure that your choice is legally binding, it is best to have a formal document (such as a Power of Attorney) rendered and filed in accordance with the laws in your state.

National standards for guardians and a code of ethics have been developed. They are not mandatory in every state but are available for anyone choosing to use them as a guide. Contact the National Guardianship Association for a copy, for a fee. They also offer other information on guardianship for a fee.

 

 

NC For information on NC guardianship services for older adults:

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When Your Family Member Has Alzheimer's or Dementia

Preplanning for the future is especially important if your family member is showing signs of Alzheimer's Disease and/or dementia. The cruel reality is that, over time, Alzheimer's and dementia take away a person's ability to exercise good judgment.

If you have the good fortune to have some times when your family member is lucid and able to vocalize their desires related to the disposition of their estate and other issues such as their thoughts on a natural death and how they want to be cared for, take advantage of it. Put a Living Will, Power of Attorney, Health Care Directive, etc. in place while the person can have some input in the decision-making process. Discuss with them the realities of their future and plan for it. That way, as your family member declines, both of you will have less guilt and it will ease the caregiver burden while ensuring that your family member's wishes are honored.

Much of the pre-planning for those with Alzheimer's or dementia is the same as that for anyone else (pre-planning). However, the issue of capacity to independently carry out affairs becomes a real issue rather than a remote possibility. There are resources to help you with these discussions and to help you decide when a family member should be considered for guardianship. By pre-planning with your affected family member, you help them keep their dignity and help lessen hurt feelings and feelings of embarrassment and humiliation.

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Relevant State Statutes

Should you choose to sign pre-planning documents without the assistance of an attorney, you may want to review your state's relevant legislative statutes to ensure that you understand what is required, what it means, and where or if you must have the documents notarized and recorded to have them be valid.

Try your state government site to find out where to locate General Statutes and legal forms for your state. The Cornell Law School's Legal Information Institute will provide you with links in your state (scroll down).

 

Again, we recommend that you consult with an attorney and/or estate planner since laws can change and/or there may be considerations that are not evident.

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Checklist

Completed: Yes No
Living Will  
 
Health Care Power of Attorney  
 
Durable Power of Attorney  
 
Advanced Instruction for Mental Health Treatment  
 
Will  
 
Consulted with an Estate Planner  
 
Discussed Intent With Doctor(s) with copy to them  
 
Discussed Intent With Family with copy to them  
 

 

 

 

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