Will Power of Attorney

Many of us take for granted that we will be able to take care of our personal and financial affairs "tomorrow." However, if you are a family caregiver, particularly for an older adult, you know that you cannot always count on tomorrow.

 
Health and finances are two areas that may require caregivers to have the input and the legal authority to make decisions on behalf of another person. The issue may be as simple as signing a check for a loved one or as complex as deciding if he or she would want a feeding tube after becoming bedridden and nonresponsive.

Things You Should Know

The number of older adults in the U.S. continues to increase. There are an estimated 35 million people (13 percent of the population) who are over the age of 65, with the number expected to rise to 20 percent-or more than 71.5 million Americans-by the year 2030.

The increase in the older-adult population in the U.S. has given rise to the
specialty of elder law attorneys that focus on the many legal issues specific to older adults. In addition to the many legal complexities, elder law attorneys have experience with older adults and appreciation for many of the physical and mental challenges associated with the aging process. Sources to consider when locating an elder law attorney include:

• The U.S. Administration on Aging, which sponsors statewide legal hotlines for those age 60 and over. To obtain the appropriate number, call (800) 677-1116.

• The state bar association.

• Patient representatives at any nearby hospital.

Where There’s A Will...

One important legal consideration is the creation of a will. A will is a legal document detailing how an individual wants his or her assets distributed upon death. If an individual dies without a will, called "dying intestate," the state will determine the distribution of assets. Individuals must be competent when their wills are drawn up and may make changes to them as long as they remain competent.

Work with your loved ones to inventory their assets, review outstanding debts, detail beneficiaries and identify any special desires they may have for particular items or monies.

Health Care Matters

As a caregiver, friend or child of an aging loved one, it is important that you know what his or her health care wishes might be should he or she become incapacitated-mentally or physically. To best carry out your loved one’s wishes, you may encourage written documentation in the form of an advance directive. Advance directives are designed to convey an individual’s wishes about his or her medical care to family and physicians at a time when he or she is otherwise unable to do so. There are two types of advance directives:

• Living Will-Details and records the care individuals do or do not wish to receive at a time when they are no longer able to speak for themselves.

• Durable Power of Attorney for Health Care-Also known as a "health care proxy," this document is usually prepared in addition to a living will. It allows you to appoint an individual, called an agent, attorney-in-fact or proxy, to make medical decisions for you if you are incapacitated and unable to do so.

Caregivers face many challenges as they search for information and make decisions about how best to provide care to their loved ones. One good source of information on legal considerations for older Americans is a free booklet from the MetLife Mature Market Institute called "Legal Matters." It is part of the "Since You Care" series of guides created in cooperation with the National Alliance for Caregiving. It includes information, resources and checklists.

Find Legal Forms HERE 

By: Stacey Moore

Article Directory: http://www.articledashboard.com• National Academy of Elder Law Attorneys (NAELA) at www.naela.org or by phone at (520) 881-4005. Within the site is a search field to find an elder law attorney in your area. You can get a copy by calling (203) 221-6580, e-mailing maturemarket institute@metlife.com, visiting www.maturemarketinstitute.com or writing to MetLife Mature Market Institute, 57 Greens Farms Road, Westport, CT 06880.

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Technorati Tags: durable health care power of attorney document, naming more than one durable power of attorney, power of attorney medical children

We all hope to live a healthy life and be fully conscious of the decisions we make. There is a very real possibility at some point in your life you will not be able to make critical decisions due to an accident or illness and will need someone else to make those decisions for you.

If you haven’t written instructions naming medical decision makers for you, family members, medical staff and courts could approve actions not in your wishes.

The following are tips in choosing your Medical Power of Attorney (PoA):

1. Use your brain, not your heart in selecting PoA’s. You need someone who can make decisions based on what you want, not what they would want. Your PoA’s may face scrutiny from family members for the decisions they make.

2. Prioritize your PoA’s. Having co-Powers of Attorney can lead to disagreements and delays in taking action. The preferable method is listing a first, then second and finally a third PoA.

3. While location of your PoA’s isn’t critical it is beneficial, especially during a prolonged illness, to have PoA’s who are local.

4. Talk to your potential PoA’s about your basic wishes medically (which medical procedures, medications used, etc). Most Power of Attorney documents are accompanied by a Living Will which states your intentions regarding the use of life support equipment when two doctors have stated that you have no chance of surviving without machine assistance and you are brain dead. This document removes the toughest decision from your PoA’s.

While there other activities sounds more enjoyable than creating this type of plan, your family will be spared time and stress with the legal structure in place to make care for you an easier process.

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By: Jamie Kahn

Article Directory: http://www.articledashboard.comWritten by Jamie Kahn, owner of livingtrustarizona.com and writer for living-trust-phoenix and Estate Planning Phoenix

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I recently wrote about the absolute need for a Medical Directive granting the ‘exclusive power’ to your Agent for the purpose of communicating your healthcare wishes and to instruct those in charge of your medical care and to respond to the actual facts and variables known when an actual healthcare decision needs to be made. Your Medical Directive becomes effective, when:

1. You cannot communicate your own wishes for your medical care:

A. Orally,
B. In writing, or
C. Through gestures, and

2. You are diagnosed to be close to death from a terminal condition, or to be permanently comatose, and

3. The medical personnel attending to your care are notified of your written directions.

WHAT IS A FINANCIAL DIRECTIVE?

To summarize, a ‘Medical’ Directive is a legal Instrument addressing the issue(s) of your healthcare and a ‘Financial’ Directive is legal financial Instrument that empowers your Agent over all your financial matters and to exercise or perform any act under a recognized ‘Principal / Agent’ relationship, with power, duty or right of any obligation whatsoever over everything that you now presently have or may thereafter acquire in the future, relating to any person, matter, transaction or property, real or personal, tangible or intangible, now owned by you or thereafter acquired by you, including, without limitation, general powers and specifically enumerated powers as to each possible event or circumstances.

In order for your Financial Directive to be legally binding on all third parties, the third parties so notified of your Principal/Agent relationship, your instrument must be in writing, properly witnessed or notarized with power to indemnify all those who accepted it in good faith.

Your Financial Directive should grant your Agent full power and authority to do everything necessary in exercising any of the powers as fully as you might or you could do if you were personally present, with full power of substitution or revocation, ratifying and confirming all that your Agent may lawfully do or cause to be done by virtue of your Financial Directive.

ESSENTIAL ESTATE TAX PLANNING: THE FINANCIAL DIRECTIVE

A Financial Directive should be part of your estate tax planning.

Your Financial Directive Instrument should address the following general powers and specifically enumerate those powers as to each possible event or circumstance:

1. Demand, receive, and obtain by litigation or otherwise, money or other thing of value to which the Principal is, may become, or claims to be entitled, and conserve, invest, disburse, or use anything so received for the purposes intended.

2. Contract in any manner with any person, on terms agreeable to the Agent, to accomplish a purpose of a transaction, and perform, rescind, reform, release, or modify the contract or another contract made by or on behalf of the Principal.

3. Execute, acknowledge, seal, and deliver a deed, revocation, mortgage, lease, notice, check, release, or other instrument the Agent considers desirable to accomplish a purpose of a transaction.

4. Prosecute, defend, submit to arbitration, settle, and propose or accept a compromise with respect to a claim existing in favor of or against the Principal or intervene in litigation relating to the claim.

5. Seek on the Principal’s behalf the assistance of a court to carry out an act authorized by your Financial Directive Instrument.

6. Engage, compensate, and discharge an attorney, accountant, expert witness, or other assistant as it becomes necessary or relevant to principal objective(s).

7. Keep appropriate records of each transaction, including an accounting of receipts and disbursements.

8. Prepare, execute, and file a record, report, or other document the Agent considers desirable to safeguard or promote the Principal’ s interest under a government statute or governmental regulation.

9. Reimburse the Agent for expenditures properly made by the Agent in exercising the powers granted by this Instrument.

10. In general, do any other lawful act with respect to the subject at hand.

WHEN DOES YOUR FINANCIAL DIRECTIVE BECOME EFFECTIVE?

Your Financial Directive becomes effective when you are considered disabled or incapacitated.

For purposes of your Financial Directive Instrument, "disabled or incapacitated" means when a physician certifies in writing at a date later than the date of your Instrument was executed that, based on your physician’s medical examination of you, your doctor declares you mentally incapable of managing your financial affairs.

Your Financial Directive should have a paragraph to ‘legally authorize your/the physician’ who examines you to disclose your physical or mental condition to another person for validation. You may even authorize a second physician for a second opinion. Subsequent to this verification and disclosure of your incapacitated condition, a third party that accepts your Financial Directive is fully protected from any action taken.

FINANCIAL DIRECTIVE COMPARED TO GENERAL POWER OF ATTORNEY

I am reminded of cases where the spouse is precluded to sit in important business meetings of which her temporarily incapacitated husband was a member, and decisions were being made affecting her husband’s interest in the business. While a general power of attorney may have been sufficient, but more likely would have required further court action. The Financial Directive is a significantly stronger Instrument then a general power of attorney, and would have specifically addressed issues concerning the spouse’s ability to sit and vote with the Agent, in decisions affecting the business, and more specifically her ownership interest in the business, with ability to bring in professional assistance to consult with her on such important matters.

CAUTIONARY PROVISIONS WITHIN YOUR FINANCIAL DIRECTIVE YOU WOULD NOT WANT YOUR AGENT TO HAVE

While we have enumerated the specifics of the powers to your Agent, there are some powers you would not want your Agent to have:

1. Your Agent cannot execute a will or codicil on your behalf.

2. Your Agent cannot execute any trust on your behalf; however, your Agent can enter into a custodial agreement with another ‘independent’ individual or bank with trust powers.

3. Your Agent cannot divert your assets to himself [or herself], his [or her] creditors or his [or her] estate.

4. Your Agent shall not exercise, and shall not be vested with any incidents of ownership as to insurance policies insuring your life and shall have no power and no authority over life insurance policies you may own on your Agent’s life.

5. Your Agent is your FIDUCIARY, possessing no general or limited power of appointment.

6. Your Agent shall not exercise any powers which you received from your Agent in a fiduciary capacity, and your Agent shall have no authority to exercise any powers, the exercise of which would cause any of your assets to be considered as taxable in your Agent’s estate for the purposes of the federal estate tax or the inheritance tax.

Your Agent shall have NO Power to void or modify any portion of your Financial Directive in any way whatsoever. Only the Principal may revoke or amend by written notice to all parties and only by certified mail with return receipt.

By: Rocco Beatrice

Article Directory: http://www.articledashboard.comRocco Beatrice, CPA, MST, MBA, Award-winning trust & estate planning expert toll-free: 888-938-5872 Watch a FREE video on surefire ways to save time, reduce taxes legally, protect assets, secure privacy, preserve money & attain a successful, financial wealth-building roadmap. Click here: Asset Protection Irrevocable Trust, Medicaid Asset Protection,Financial Directive: Property

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