Older people continue to be concerned
about management of their assets and property. However, they may be
unable to participate because of illness, confusion or loss of
memory. It is important to involve them whenever possible.
Compiling an Inventory:
Develop an inventory which lists
all assets and liabilities of the older person. The following items
should be included: bank accounts, pass books, certificates of
deposit, money market funds, stocks, bonds, precious metals,
jewelry, real estate deeds, promissory notes, contracts, insurance
policies, safety deposit boxes (including location of the key), and
retirement or pension benefits.
Location of the records for each
asset and liability also should be included. Other important
documents, such as birth and marriage certificates, social security
numbers, divorce decrees and property settlements, income tax
returns (state and federal), death certificate of spouse (if any),
and wills (including the attorney's name and executor) or trust
agreements, should be listed and the locations designated.
If able,
the older person should compile the list. If unable, a family
member, attorney, banker, accountant or certified financial planner
can help compile the inventory which should be copied and kept in a
safe, obvious place, possibly with a relative or friend. It is
important that the document be updated every year.
Managing a Will and Financial
Affairs:
An objective of financial and
estate planning for older people is to plan for the orderly
distribution of the estate upon their death, according to their
desires.
Consequently, it is important for people to have a will
drafted, which incorporates the above inventory and states how
property is to be disposed of upon death. Everyone over the age of
18 should have a will or a similar legal document.
If a person does not have a will,
an attorney should be consulted immediately. Proper planning is
essential and powers of attorney or trust agreements should be
executed while a person is still competent.
Otherwise, transfer of
responsibility for management of the person's financial affairs to
someone else must be completed through a court action, and costs
spent in clearing up Probate problems come directly out of the
person's assets, diluting whatever estate is left after death.
Remember, as caregivers concerned
about the financial affairs of a care-receiver, you should not get
directly involved without legal authority. Acting without clear
legal authority, even with the best intentions, can cause serious
problems.
The legal mechanisms available for
surrogate decision making are: durable power of attorney (DPA),
probate conservatorship, and durable power of attorney for health care
(DPAHC).
Durable Power of Attorney is a
written legal document giving someone other that the Principal
the authority to handle the Principal's financial decisions. It must
be signed by the Principal while the Principal is still legally
competent. The DPA is valid without time limit until the Principal
either revokes the DPA or dies, or the court revokes the DPA due to
mismanagement.
The preferences of the Principal regarding the
management of assets can be specified. This power to manage assets
can be transferred immediately or can be designated to go into
effect when it is determined that the Principal has become mentally
incapacitated.
Financial decisions made by an individual given DPA
by the Principal are binding on the Principal and his/her
successors, so caregiver and care-receiver are urged to seek the
advice of an attorney.
Probate Conservatorship or
Conservatorship of Estate allows for the management of the
Principal's money and other property when the Principal presently
lacks the capacity to either decide or appoint another to decide
financial decisions in his/her behalf.
Court proceedings to
designate a conservator are required. This is a difficult and
extreme procedure but may be necessary if the care-receiver is
already incapacitated to the extent that he/she is unable to manage
personal financial affairs.
Durable Power of Attorney for
Health Care (DPAHC):
is a written document which must be
signed by the Principal while he/she still has the capacity to make
decisions. The DPAHC gives someone other than the Principal
authority to make medical treatment and health care decisions on
behalf of the Principal for up to the maximum of seven years after
the document is signed.
It allows one to specify ahead of time how
he/she wishes these decisions to be made. Wishes regarding
extraordinary supportive care, including breathing machines and tube
feeding, can be addressed in the Durable Power of Attorney. All
adults should have a Durable Power of Attorney for Health Care.
Lantern-Petris-Short (LPS)
Conservatorship:
(Laws vary from state to state,
check your state for comparable laws) or conservatorship of person is a
court-ordered process which enables a person to get the psychiatric
and/or medical care needed but by reason of mental illness is
refused.
The court determines if the Conservatee, in addition to
receiving the necessary psychiatric treatment, may also retain or be
denied the right to vote, possess a driver's license, enter into
contracts, or refuse non-psychiatric medical treatment.
The
Conservator may be a relative, friend or an appointee from the
Conservator's office. The Conservator may be given the right to
require and authorize the conservatee to receive involuntary
psychiatric and/or medical treatment and supervises and assists in
making proper living arrangements, including placement in a
Residential Care or a nursing home when indicated by the doctor.
In
order to start the process, one consults either with his/her
attorney or calls the Office of the Counselor in Mental Health. An
individual has to be adjudicated to be gravely disabled before being
placed on an LPS conservatorship. Grave disability is defined as the
inability to provide for one's food, clothing, shelter and proper
medical care due to a mental disorder.
Selecting an Attorney:
It is important to select an
attorney who is knowledgeable in the areas needed (estate planning,
will drafting, probate or conservatorship). Ask friends or other
professionals for recommendations, or contact a Lawyer Referral
Service, County Bar Association, or Senior Citizens Legal Services.
Before agreeing upon a particular attorney, ask if he/she has
previously done what you require.
