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May 27, 2018
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Navigating the aging journey

Julie Ann Soukoulis
Do your parent’s legal preparation before dementia sets in!
May 25, 2018

Anytime an elderly relative becomes mentally incompetent, it becomes necessary for someone to start taking care of all the paperwork and legal affairs. Advance planning by both the elderly person and those who care about him/her will facilitate this process dramatically.

 AARP’s Document Locator is a very useful tool. It is designed for an elderly person and his/her relatives to make contingency plans for the future. Other actions include setting up joint bank or property accounts and signing a durable power of attorney and a medical power of attorney.

Waiting too long translates to a dementia patient who refuses to give up these critical powers

Joint property and bank accounts are the simplest way to go. This will ensure that someone will be able to handle the elderly person’s affairs if s/he becomes incompetent. The serious financial and tax consequences mandate such an arrangement.

For example; with Medicaid assistance, the assets of both owners are taken into account when determining eligibility. Complicated problems appear when entering arrangements without checking all the legal implications first.  

Obtaining a durable power of attorney is critical. An ordinary power of attorney is not valid if the principal becomes incapacitated. This creates serious problems for the person handling their affairs and arranging care.

A durable power of attorney is designed to survive disability and incompetence. It remains an important alternative to guardianship, conservatorship, or trusteeship. Due to the fact that laws vary from state to state - it is essential that a durable power of attorney be drawn up by someone licensed to practice in the state in which the client resides.

Guardianship or conservatorship is the legal mechanism used by a court to declare a person incompetent or appoint a guardian. The court transfers the responsibility for managing financial affairs, living arrangements and medical decisions to the guardian. This process is lengthy.

Making life and death decisions

Due to the profound advances in health technology, people are living longer. Adult children are often asked to make life and death decisions for their terminally ill parents. Courts now ask what preferences about medical care the patient had. Ideally, everyone should make his/her own wishes known - by preparing and signing:

A medical directive

A health care (medical) power of attorney

A durable power of attorney, and/or

A living will

Critical legal definitions:

Power of Attorney - Normal powers of attorney make it possible for individuals (“principals”) to give legal authority to others (“agents”) to conduct business and property transactions for the principal. This power may be general or limited, for a defined or for an indefinite span of time. If the principal remains competent s/he may change or end the power of attorney at any time.

Living Will - This is a written statement of wishes regarding the use of specific medical treatment. It is delivered to the doctor, hospital, or medical provider. It is a critical part of the official medical record. Every state requires the use of its own form for a living will. Most states have other limitations as well. For some states, a living will applies only to those with active Alzheimer’s disease, or had a stroke, a degenerative disease, or fell into a coma or persistent vegetative state.

Health Care Power of Attorney (also called a medical power of attorney or health care proxy). This durable power of attorney is for health care (as opposed to financial decisions). Its authorization gives the agent power to make healthcare decisions for the person. Without this document, healthcare providers and institutions will make critical decisions for the patient. The health care power of attorney can also include a statement of wishes and preferences. They work best when outlining specific situations (an example; a person wanting to forego respirators while continuing nourishment).    

A statement of wishes determining organ donation should be included. Health care powers of attorney are used by those wanting life-sustaining treatments continued - as well as those who want to forego these treatments. Increasing numbers of states have enacted statutes that recognize health care powers of attorney. Most states provide forms and procedures for creating the document.

Questions to consider

The critical considerations for preparing a durable health care power of attorney are whether or not to permit life-sustaining procedures. This includes whether or not life-sustaining procedures include nutrition and hydration (food and fluid delivered with a nasogastric tube or tube into the intestines, veins or stomach).

The health care power of attorney should clearly state the following:

Life-sustaining procedures that can be used

Life-sustaining procedures should not be used after diagnosis of a fatal, incurable, or irreversible condition; or

Clarity that the decision should be left to the agent.

Another critical juncture comes when the agent must make all health care decisions. Remember that this person is the one to make healthcare decisions, not manage any money. Choose a trustworthy person. Someone who is good under stress and good at talking to doctors.

Other points to consider

If you want both health care power of attorney and a living will, you need to use the same terms for describing medical treatments. Also list the same person as the agent or proxy.

Your elder’s doctor and other health providers should know about your health care power of attorney. There should be no objection to following it. If there are objections, you should either work them out - or change providers.

Also consider appointing a backup agent or proxy. It is always possible something could happen - and in the event the first person is unable or unwilling to act - make certain that this backup person has all the needed documents.

Retaining a lawyer’s help

It is always wise to have a lawyer draw up any durable power of attorney and/or health care power of attorney. This will protect any special needs and will be acceptable in your specific state.

Eldercare Resources, Aging Parents.Com  Expert guidance and options to resolve aging parent stress. Academy Tel: 520-881-4005.    Alzheimer’s Association,  Tel: 707- 573-1210

American Association of Retired Persons (AARP) Tel: 202-434-2277.  America’s Health Insurance Plans (AHIP) Search their store for A Consumer’s Guide to Long-Term Care.

A public service of the U.S. Administration on Aging connecting you to services for older adults and their families in each state by community can be found at Tel: 1-800-677-1116

National Council on the Aging, Inc. Tel: 800-677-1116.  National Institute on Aging  website:  niaic@nia.nih.gov  Tel: 1-800-222-2225 TTY: 1-800-222-4225. Lastly the National Care Planning Council

A comprehensive resource for Eldercare, Senior Services and Care Planning, State Care Planning Councils. Looking for any further resources? Please don’t hesitate to phone my office at 707-586-1516, we’d be more than happy to find those resources you seek & help you navigate the aging journey together.

On June 26th from 8:30 am to 1 pm the Alzheimer’s Association and Home Instead Senior Care are hosting a seminar at Star of the Valley Catholic Church located at 495 White Oak Dr., in Santa Rosa, a seminar entitled Dementia and Brain Health Essentials. This program is free, and lunch will be provided – donations always appreciated to support the cause of brain health. Registration is required- reserve your seat at 800-272-3900

Julie Ann Soukoulis is the owner of Home Instead Senior care office in Rohnert Park, mother of two and passionate about healthy living at all ages. Having cared for her own two parents, she understands your struggles and aims, through her website, www.homeinstead.com/sonoma to educate and encourage seniors & caregivers. Have a caregiving or aging concern? She’d love to hear from you at 586-1516 anytime.