Archive for April, 2010
April 27th, 2010
A Durable Power of Attorney is a vital document for anyone, but it is especially important for individuals engaging in estate and long-term care planning. Most people mistakenly assume that close family members (such as spouses or children) will have the authority to manage an individual’s assets when he or she is no longer able to do so. Without a Power of Attorney, this is simply not the case.
The Power of Attorney gives an agent (also known as attorney-in-fact) the authority to make financial decisions and manage property on behalf of a principal. You can designate more than one agent, and you can determine whether or not you would prefer them to act together, or have to ability to act separately. You can also designate a successor agent, so that there is someone who can fill in when your agent is unable or unwilling to act.
A Power of Attorney can be limited and only grant the agent authority over specific acts, or it can be a broad grant of a wide range of powers. A Power of Attorney that is durable allows the document to continue in full force once the principal loses mental capacity. It is essential that you execute a Durable Power of Attorney, so that your attorney-in-fact will not be left powerless if you have lost mental capacity.
Your attorney-in-fact can do many things, including pay your bills, manage your investments, sign financial documents on your behalf, and even transfer your money, if given the authority to do so. If you grant broad powers, your agent will be able to do anything that you can do with regards to your assets or property.
Because a Power of Attorney can give an individual complete control over all of your property, it is crucial that you choose a person who is right for the job. When choosing your agent, make sure he or she is a trusted individual who is responsible, dependable, and ethical. He or she does not have to be a lawyer or a financial expert, but should be someone who is competent to handle financial matters. It is important that you communicate to your agent how you wish your assets to be managed should you be unable to do so yourself. Also, make sure you fully disclose all of the property you own, and which financial institutions you hold accounts with, so that your agent has full knowledge of the extent of your assets. It is also imperative that the attorney-in-fact knows where the original signed power of attorney is being kept, since financial institutions often require an original document.
And remember: if you find that you are unhappy with the way your attorney-in-fact is handling your affairs, or change your mind for any reason, you can always revoke the Power of Attorney.
April 24th, 2010
New rules are being issued by President Obama’s health secretary that give same-sex partners more hospital visiting rights. The rules will also make it easier for partners to make medical decisions on behalf of their loved ones.
The new rules will establish that same-sex partners must receive visiting privileges that are equal to those of immediate family members. The rules will apply to any hospital that participates in the Medicaid or Medicare programs.
Before the formulation of these rules, gays and lesbians, as well as children of gay and lesbian couples, were routinely denied the basic right to visit their partner’s bedside at hospitals throughout the country. Even partners who were the designated agent in a Health Care Proxy were routinely denied access to their loved ones.
These new rules protect the rights of same-sex couples, and also expand the rights of others whose closest companions are not immediate relatives.
April 22nd, 2010
The Family Health Care Decisions Act, signed into law by Governor Paterson in March of 2010, establishes the right of family members and others close to an incapacitated patient to make health care decisions on that patient’s behalf when he or she is no longer able to do so.
Prior to the enactment of this Act, no one, not even a spouse or a child, could speak on behalf of an incapacitated person if he or she had not signed a health care proxy or left clear and convincing evidence regarding his or her health care wishes before becoming incapacitated. This led to situations where patients were denied the palliative care they would have wanted, or were subjected to invasive treatments they would have refused.
With the passing of this law, any incapacitated patient who has neglected to sign a Health Care Proxy will nevertheless benefit from having a surrogate make health care decisions on his or her behalf. Now, once a finding of incapacity has been determined by the patient’s physician, a surrogate must be informed. According to a priority list of individuals (in order of priority: court-ordered guardian; spouse or domestic partner; adult child; parent; adult sibling; and close friend), a surrogate will be chosen to make any and all health care decisions for the incapacitated patient, including withdrawing or withholding life-sustaining treatment, in accordance with procedures and safeguards established in the new law.
While this new law helps individuals and families during difficult times, the Act does not do away with the need for a Health Care Proxy or diminish the importance of engaging in meaningful conversations with your loved ones regarding your wishes. First, because this legislation is so new, we have yet to see how the law will be applied and implemented in a given situation. Second, your surrogate will be chosen based on who is highest on the promulgated priority list, and may not be the person who knows your wishes or the one you would have chosen to speak on your behalf. Also, if there are multiple people at the same level of priority with differing opinions, objections can be made to the surrogate’s decisions, which could lead to conflicts. This can all be avoided if you select an agent, and speak to your agent about your medical wishes.
By signing a Health Care Proxy when you are well, you can choose the person who you want to make medical decisions on your behalf should you become incapacitated. You can choose the person you believe will carry out your wishes, and you’ll avoid a potential familial dispute down the road.
April 12th, 2010
There may come a point in a loved one’s life when assistance will be needed in the home. The signs that help is needed often begin as subtle indications. When a parent or spouse becomes forgetful and confused, or when doing household chores become more difficult, the potential seriousness of the situation is typically not addressed immediately. Many refrain from suggesting that assistance is needed because it is an extremely difficult conversation to broach. Most people are afraid that their loved one will become defensive or angry at the suggestion that she is not as capable as she once was or believe herself to be. Unfortunately, many wait until their loved ones are at a critical juncture after a medical catastrophe.
Waiting until a crisis is not necessary. Home care has been described by many as preventative medicine. The earlier assistance is provided to an individual who is losing mental capacity or physical ability, the longer she will likely be able remain independent and live in the comfort of her own home. Depending on the level of care needed, a home attendant can come for a few hours a day to offer a helping hand, or provide round-the-clock care. Home health care is a viable way to preserve independence and a good precaution against an emergency situation.
Privately paying for home health care can be extremely expensive, but financial concerns should not keep anyone from seeking necessary assistance. Elder law attorneys assist individuals in financially qualifying for Medicaid benefits that will pay for the cost of home health care for those who qualify medically. If you’ve noticed functional or behavioral changes in a family member, and are considering home care, call an Elder law attorney today.