Elder Law is for Every Adult

Elder law is about more than old age. Elder law is about the planning and care that every person needs in order to be prepared for disability or illness.  Disability Planning 101:  Regardless of age, each of us must prepare for the worst.  “What are some of these needs,” you ask?  Every legal jurisdiction is different, and this article is not intended as specific legal advice.  Nevertheless, there are some common themes that everyone must think about if they want to ease the stress of some of  life’s worst case scenarios.

1. Physical Care. Any one of us could be injured driving home from work. The news is full of stories of people who were struck down or severely injured at a time they would least expect it. In one of the most famous cases, Terry Schiavo was in her mid-twenties, healthy and gainfully employed, when she suddenly collapsed on the floor of her home and had to be put on life support.

If the unthinkable were to happen to you, who would immediately assume responsibility for your physical care? If you were unable to speak for yourself, would your family know what you would want? Would your family even know who should be designated as the person to make decisions for you? Would that person have documentation of proper legal authority to receive information and to assert your wishes with medical professionals?

The documents you need to manage this issue are called Advance Directives. Advance Directives include a Health Care Power of Attorney and a Living Will. These are not the same, and each has a specific use.  I would be happy to help you learn the differences between these different documents, discuss your options with you, and walk with you through the decision process.  These are not fun things to think about, but it is a gift to yourself and your family to prepare in advance of need.

2. Financial and Business Issues. If something were to happen to you, who would immediately take over to pay the electric bill? Who would bring in the newspaper, or call to have it stopped? Who would pay your car registration, or sell your car if it needed to be sold? The document to cover these types of matters is called a Durable Power of Attorney, or DPOA.

Choice of a trustworthy agent to manage your affairs under a Durable Power of Attorney is a matter of the utmost seriousness. Because of the nature of the responsibilities, it is important to choose wisely someone who has the business wherewithal to do the job right, and also who is utterly and completely worthy of your trust. This can be hard to do, but it must be done.

Durable Powers of Attorney are complex documents which must be carefully tailored to fit each person’s needs and circumstances. If there is one document which you should never use a form off the internet for, this is probably it. However, along with your Health Care Power of Attorney and your Will, this document is something that no estate plan is complete without.

Another item that falls in the category of business planning is, literally, your business.  Every small business owner or partner should consider how they would keep their business open in the event of disability.   This can be incorporated into a general succession plan.

Arrangements for Minor Children. Unless you designate who would be custodian of your children if something were to happen to you, your family would have to go to court to decide. Your children could even be put in foster care until things got worked out. Do you want them to go through this trauma at the same time their lives have been turned upside down by disability or death of a parent?  I highly recommend not only designating a guardian, but also creating a short video which I would place into my attorney file to be used only in the event someone were to challenge your choice.

Additionally, there is the matter of money to support your children or dependents.  Depending on circumstances, even middle class families may want to set up and fund a trust for children or other dependents.  Do your family a favor and let them avoid that additional source of stress during a family crisis. Plan in advance, execute it in writing, and take appropriate measures to fund the arrangements you have set up.

Financial Planning for Old Age. Do you know the options for old age care and the various costs? Can you self-finance, or have you purchased long term care insurance? Do you know the difference between Medicare and Medicaid? Do you know the rules for each and what is covered? Do you know how to become eligible for Medicaid? Have you thought about the pro’s and con’s of various planning strategies? Discussion of these is part of my free “legal checkup” that I would like to offer to each of my clients.

Your Will. Many people think of their Last Will and Testament as the main pillar of their estate plan. In fact, while it is important, your Will is listed last here, for a reason. It’s one of many documents you will need, but perhaps may not be the first one you will need. The Health Care Power of Attorney and Durable Power of Attorney are documents that have direct bearing on you, personally:  your personal well being should you ever become severely ill or disabled.

A well drafted will, and carefully chosen Executor, on the other hand, is a gift to your family. A carefully thought out and worded will, naming a responsible Executor, can save your family money, strife, and headache. Like every document in your portfolio of estate planning documents, your will should be custom tailored to fit your particular needs and circumstances.

Practical considerations. Whenever you do start to need a higher level of care, you may not be the first one to realize it. Who can you trust, to help you know when the time has come to begin implementation of your long term care plan? And then, who can you trust to implement it the way you would want it done? These practical issues are important, and sometimes overlooked in the planning process.

Ideally, considerations in all of this planning process also will include ideals of quality of life, for preserving autonomy, and for self determination in elder issues.  In addition to the study of law, I have  also pursued graduate studies in medical ethics.

Ethically, professionals and caregivers ought to enable and empower the client to make their own decisions or to effectuate what the client would want.  But if we have not had crucial conversations with them, our family and caregivers won’t be able to perform this task.  Moreover, if we don’t assign someone and then the task must be done, our family would be forced to go to court to have a judge appoint someone.  The fees for the court action would be covered by the disabled person’s estate, and the person also loses control over who is appointed.  It is by far best to take care of this ahead of time.

I also believe strongly in the collaborative model of care, in which the professionals all work together for the good of our mutual patient or client. This is a powerful model. When you or your family are faced with some of the tough legal, medical, and ethical issues in life, I hope to offer a professional presence to discuss these decisions with you, to get access to the expertise you need, and (if needed), to go to bat for you whether that is in a court, on an insurance appeal, or beside a hospital bed.

Last but not least, as this web site shows, I am a peacemaker. The old age of a parent, or disability of any member of the family, can put incredible strain on the family unit.  I will always attempt to  help families work together and stay together, to minimize stress and distress during difficult times, while placing the interest of the vulnerable or elder adult first and foremost.

My goal is to be a resource not just for practical, legally sound advice through the years ahead, but also to be a trusted team member to help clients navigate the decisions and cares that come with aging.  It’s about listening, it’s about taking the time to build a relationship, it’s about knowing the individual, and it’s about being available when my client needs help. (That’s the reason I make house calls for elderly or infirm clients.) The better I know a person before they need help, the better I will be able to anticipate and meet needs when the time comes that the client does need help.

To schedule an appointment to discuss your planning needs, call 803-414-0185.

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2 Responses to Elder Law is for Every Adult

  1. Jennifer F. says:

    Thanks for the good info. Where does long term care insurance fit into all this? Also life insurance? Thank.

  2. Skinner says:

    Long term care insurance and life insurance are both tools for the planning process, but each meets a different goal. Long term care insurance generally kicks in to cover some costs of care when you cannot do certain tasks that are needed in order for you to continue living independently. With long term care costing $4,000 – $10,000 per month these days (depending on level of care needed and location) even a modest supplement can help preserve family assets by slowing down the rate at which those assets are depleted for costs of care. Life insurance is generally paid to designated beneficiaries after you die, though many policies have provisions where they can be borrowed against after they reach a certain cash value. Life insurance can be used to meet important planning needs such as providing for children and spouse, buying out a business partner, or to equalize an estate plan among heirs. Both these types of insurance are financial products that have many forms, so your long term planning goals are an important factor in determining which particular product among those available is most appropriate for your situation.

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