Legal Aspects of Preparing for Aging - Making Your Wishes Known
I. Health Care

  1. Guardianships. These are statutory and controlled by the Probate Court. Referring to adults and not to kids, we have a guardianship of the person and/or estate. Person is "allegedly disabled." Requires a physician's report. Notice must be given to ward: GAL appointed to opine; ward has right to consent or object. Sample forms to inform - or intimidate - you. Guardianships cannot have you confined to any type of institution willy nilly. Still requires following proper procedures and protections.

  2. Advanced Directives. Also statutory but largely and loosely enforced after the fact. Health care institutions are insisting on them, somewhat for their own protection. We all remember Karen Quinlan and Terri Schaivo. However you feel about the resolution, it could have all been avoided if there was proper documentation.
    Caveat - There has been some questions about Catholic Hospitals being permitted to abide by individual wishes regarding removal of feeding tubes and hydration. Individuals have to decide where they stand on these issues and then clear it with their health care providers to make sure the hospitals can or will honor their wishes.

    1. Durable Power of Attorney For Health Care.You appoint somebody to make health care decisions for you if you are not capable of doing so yourself. Very broad and gives almost unlimited powers, unless you specify something to the contrary. Gives rights to access to and disclosure of medical records and authorizes organ donations and autopsies. Should be very, very specific about what you do and do not want included, e.g. blood transfusions, ventilation, voluntary admission to psychiatric or other facility, etc. It can include a direction that nothing extraordinary be attempted, or that everything extraordinary be attempted. Can be effective when signed or at a specific occurrence, e.g. guardianship granted, in a coma, etc. Guardianship should be somebody who not only knows your wishes but will carry them out. Name a successor guardian in case your nominee can't or won't act. You can also name this person as a guardian or your person as a guardian and estate should a guardianship be necessary.
      Very formal document, requiring a witness who in the person you name as your guardian.

    2. Living Will
      Does not name an agent to make decisions on your behalf. Your specifications of what you want to happen, e.g. ventilation, feeding tubes, etc. Catch is that it calls for the opinion of "my attending physician who has personally examined me and has determined that my death is imminent except for death delaying procedures..." Physicians are not trained to admit defeat or give up hope. Often, your family will have to meet with an Ethics Committee or Medical Ethicist before they will honor your wishes. This is why you need to discuss everything with your physician and investigate the hospitals on which he/she is on staff to find out how they treat these things. Requires two witnesses, neither of whom is related to you or would benefit from your death.

    3. Five Wishes Document
      Better than nothing. Gives you lots of food for thought. Perhaps a little too broad to be enforceable and certainly, your emotional wishes are not enforceable. Let's call it a tool and not the finished product.

  3. Informed Consent
    In a broad sense, means an individual must be informed of and understand consequences of what somebody else proposes to do for and to you.

II. Property
The law largely allows you to do what you want with your property. The important things to keep in mind are: 1) think about what you want to happen with your property on your death, 2) make sure hyour legal arrangements for holding the title to the property and/or instructions for disposition on death achieve what you want, and 3) if you wait until you need an estate plan, it is too late.

  1. How does property pass on death?

    1. Joint tenancy - to surviving joint tenant; but what happens when survivor dies or simultaneous death?

    2. Life insurance - beneficiary or estate if no beneficiary named (usually not good idea)

    3. Pension - beneficiary or estate

    4. Intestate succession -

      1. Spouse only - 100%

      2. Spouse and children - 50% spouse and 50% descendants equally per stirpes

      3. Children only - descendants share equally per stirpes

      4. No spouse or children - nearest relatives

      5. Escheat to state only if no relatives

    5. Will

      1. Direct disposition or property; avoid arguments

      2. Name executor

      3. Waive bond

      4. Testamentary trust - useful of minor or disabled children

      5. Caveat - spouse can renounce will and take 1/3 of estate if children or 1/2 if no children

    6. Trust - title to property is transferred to a Trustee who becomes the legal owner but has to follow the written directions of the transferor.

  2. What is Probate?

    1. Advantages

      1. Have a judge avaialable to resolve disputes

      2. Executor or administrator is given definite legal authority and has power of the court behind them

      3. Six month limit on claims against estate

    2. Disadvantages

      1. Expense - but often not as much as commonly thought

      2. Delay

  3. Small Estate - if under $100,000 and no disputes can use a Small Estate Affadavit and avoid probate process.

  4. Living Trusts - when are they appropriate?Have their uses in avoiding probate and arranging for private control of your property. But are ofen over sold.

  5. Durable Power of Attorney for Property - Can name someone to handle your financial affairs if you become disabled. But make sure it is someone you trust, because it gives the agen the power to take advantage.