Incapacity Planning

When you are a child, your parents serve as your decision makers. They have ultimate say in where you go to school, what extracurricular activities you partake in and where, and how you should be treated in the event of a medical emergency. While most parents continue to play a huge role in their children’s lives long after they reach adulthood, they lose legal decision-making authority on that 18th birthday. Most young adults don't contemplate who can act on their behalf once this transfer of power occurs, and consequently they fail to prepare advance directives.

In the event of a medical emergency, if a young adult is conscious and competent to make decisions, the doctors will ask the patient about his or her preferred course of treatment. Even if the individual is unable to speak, he or she may still be able to communicate by using hand signals or even blinking one’s eyes in response to questions.

But what happens in instances where the young adult is incapacitated and unable to make decisions? Who will decide on the best course of treatment? Without advance directives, the answer to this question can be unclear, often causing the family of the incapacitated person emotional stress and financial hardship.

In instances of life threatening injury or an illness that requires immediate care, the doctors will likely do all they can to treat the patient as aggressively as possible, relying on the standards of care to decide on the best course of treatment. However, if there is no "urgent" need to treat they will look to someone else who has authority to make those decisions on behalf of the young individual. Most states have specific statutes that list who has priority to make decisions on behalf of an incapacitated individual, when there are no advance directives in place. Many states favor a spouse, adult children, and parents in a list of priority. Doctors will generally try to get in touch with the patient’s "next of kin" to provide the direction necessary for treatment.

A number of recent high-profile court cases remind us of the dangers of relying on state statues to determine who has the authority to make healthcare decisions on behalf of the ill. What happens if the parents of the incapacitated disagree on the best course of treatment? Or what happens if the patient is estranged from her spouse but technically still married- will he have ultimate say? For most, the thought is unsettling.

To avoid the unknown, it’s highly recommended that all adults, regardless of age, work with an estate planning attorney to prepare advance directives including a health care power of attorney (or health care proxy) as well as a living will which outline their wishes and ensure compliance with all applicable state statutes.

Jessica Silver-Greenberg (NYTimes) has recently published an article entitled, “Winning Veterans’ Trust, and Profiting From It” (December 23, 2013). Provided below is the abstract to the article from NY Times:

Winning Veterans’ Trust, and Profiting From It 

As you reach a certain age, retirement planning is essential. For Henry Schaffer, a World War II veteran, there was no question that he no longer could live on his own. His daughter Kristi began searching for retirement homes and the money to pay for it.

At Aspen View, a senior living complex in Billings, Mont., a lawyer accredited by the Department of Veterans Affairs, told the family Mr. Schaffer could probably qualify for a V.A discount. The problem lies after Mr. Schaffer moved in and they learned he did not qualify for a V.A discount at all. His daughter Kristi now says he worries he will be evicted as he can only afford about half of his monthly bills.

As baby boomers head toward retirement — worrying not only about their financial futures, but also their parents’ — a cottage industry has sprung up around the pension program.

Lawyers, financial advisers and insurance brokers have formed a lucrative alliance with retirement communities and assisted living facilities to extract many billions of taxpayer dollars from the V.A., according to interviews with state and federal authorities, as well as a review by The New York Times of hundreds of legal documents and client contracts.

For more information on this topic, continue reading the article “Winning Veterans’ Trust, and Profiting From It” by Jessica Silver-Greenberg. 

As a child of a senior citizen, you are faced with many choices in helping to care for your parent. You want the very best care for your mother or father, but you also have to take into consideration your personal needs, family obligations and finances.

When choosing a caregiver for a loved one, there are a number of things to take into consideration.

1. Time. Do you require part- or full-time care for your parent? Are you looking for a caregiver to come into your home? Will your parent live with the caregiver or will you put your parent into a senior care facility? According to the National Alliance for Caregiving, 58 percent of care recipients live in their own home and 20 percent live with the caregiver. You should consider your current arrangement but also take time to identify some alternatives in the event that the requirements of care should change in the future.
2. Family ties. If you have siblings, they probably want to be involved in the decision of your parent’s care. If you have a sibling who lives far away, sharing in the care responsibilities or decision-making process may prove to be challenge. It’s important that you open up the lines of communication with your parents and your siblings so everyone is aware and in agreement about the best course of care.
3. Specialized care. Some caregivers and care facilities specialize in specific conditions or treatments. For instance, there are special residences for those with Alzheimer’s and others for those suffering from various types of cancer. If your parent suffers from a disease or physical ailment, you may want to take this into consideration during the selection process
4. Social interaction. Many seniors fear that caregivers or care facilities will be isolating, limiting their social interaction with friends and loved ones. It’s important to keep this in mind throughout the process and identify the activities that he or she may enjoy such as playing games, exercising or cooking. Make sure to inquire about the caregiver’s ability to allow social interaction. Someone who is able to accommodate your parent’s individual preferences or cultural activities will likely be a better fit for your mother or father.
5. Credentials. Obviously, it is important to make sure that the person or team who cares for your parent has the required credentials. Run background checks and look at facility reviews to ensure you are dealing with licensed, accredited individuals. You may choose to run an independent background check or check references for added peace of mind.
6. Scope of care. If you are looking for a live-in caregiver, that person is responsible for more than just keeping an eye on your mother or father—he or she may be responsible for preparing meals, distributing medication, transporting your parent, or managing the home. Facilities typically have multidisciplinary personnel to care for residents, but an individual will likely need to complete a variety of tasks and have a broad skill set to do it all.
7. Money.Talk to your parent about the financial arrangements that he or she may have in place. If this isn’t an option, you will likely need to discuss the options with your siblings or your parent’s lawyer—or check your mother’s or father’s estate plan—to find out more about available assets and how to make financial choices pertaining to your parent’s care.
8. Prepare. Upon meeting the prospective caregiver or visiting a facility, it is important to have questions prepared ahead of time so you can gather all of the information necessary to make an informed choice. Finally, be prepared to listen to your parent’s concerns or observations so you can consider their input in the decision. If he or she is able, they will likely want to make the choice themselves.

Choosing a caregiver for your parent is an important decision that weighs heavily on most adult children but with the right planning and guidance, you can make the best choice for your family. Once you find the right person, make sure to follow up as care continues and to check in with your mother or father to ensure the caregiver is the perfect fit.

For Week 3 of the National Alzheimer's Awareness Month, LegalJourney will be offering a free Power of Attorney and Declaration of Preened Guardian¹ from Wednesday November 20th until Friday November 22nd, 2013. 

Week 3: Free Power of Attorney and Declaration of Preneed Guardian¹

The first 4 individuals who contact the LegalJourney Law Firm using the "Contact the Firm" option on www.legaljourney.com will receive a free Florida Power of Attorney and a free Florida Declaration of Preneed Guardian.

The LegalJourney Law Firm’s Week 3 offer includes: an interview with an attorney, a customized power of attorney, a customized declaration of preneed guardian and notarization² of your documents.

To find out additional details, please contact the LegalJourney Law Firm PLLC

¹This offer is available until close of business November 22, 2013.

²Notarization is only available to residents of the Tampa Bay Area

Amy Feldman (Barron’s) has recently published an article entitled, “Thinking Long Term” (November 09, 2013). Provided below is the abstract to the article from Barron’s:

Thinking Long Term

Are you Skeptical of long-term care insurance? You're not alone, and more and more advisors are arguing that the benefits outweigh the costs.

The numbers for long-term care speak for themselves, what happens when you do not have money to sustain yourself and need long-term care? Most people think that Medicare or health insurance will have you covered, but in reality that only covers a very short stay if you end up needing long-term care. Even if you have saved a respectably amount for retirement, long-term care costs can exceed $100,00 a year and you may be faced with having to spend down your assets to qualify for Medicaid.

The aging of the U.S. has changed retirement planning dramatically, at some point many of us may be faced with Alzheimer’s or other forms of dementia, arthritis, diabetes, etc. due to the fact that we are living longer.

According to Genwroth’s 2013 cost-of-care survey, a median cost of a private room in a nursing home is $230 a day, that is equivalent to $83,950 a year and if you hope to choose the nicest facility in your area, expect to pay more.

For more information on why Long-Term care planning is important, continue reading the article “Thinking Long Term” by Amy Feldman. 

When it comes to Alzheimer’s disease and other forms of dementia, more Americans fear being unable to care for themselves and burdening others with their care than they fear the actual loss of memory. Advance planning for incapacity is a legal process that can lessen the fear that you may become a burden to your loved ones later in life. For more information read our previously posted blog article "Advance Planning Can Help Relieve the Worries of Alzheimer’s Disease"

This week LegalJourney will be offering a free Declaration of Preneed Guardian¹ from Wednesday November 13^th until Friday November 15^th, 2013.

Week 2: Free Declaration of Preneed Guardian¹

The first 4 individuals who contact the LegalJourney Law Firm using the "Contact the Firm" option on www.legaljourney.com will receive a free Florida Declaration of Preneed Guardian.

When included as part of your Estate Plan, the declaration of a preneed guardianship can alleviate the stress involved with determining who will become guardian of a loved ones person and property during incapacity.

The LegalJourney Law Firm’s Declaration of Preneed Guardian free offer includes: an interview with an attorney and a customized Declaration of Preneed Guardian.

To find out additional details, please contact the LegalJourney Law Firm PLLC

Florida Statute Section 744.3045 Preneed Guardian States that “a competent adult may name a preneed guardian by making a written declaration that names such guardian to serve in the event of the declarant’s incapacity… ”

¹This offer is available until November 15^th, 2013.

October 15, 2013 marks the start of National Estate Planning Awareness week for the year 2013. This is a great time to get educated on Estate Planning and update any legal documents, such as your will, if you have not done so in the last two years. A few things to consider are the new laws on estate taxes, beneficiary designation forms, Power of Attorney agreements, and trust creation.

Attorney Karnardo Garnett of the LegalJourney Law Firm in Tampa, FL will be participating in the National Estate Planning Week by offering seminars and attending expos discussing the importance of planning.

Attorney Garnett will be hosting and/or participating in the following events during the Estate Planning Awareness Week this October:

• 10/18 – Preneed Planning
  • Where: 2901 W. Swann Tampa, FL
  • Time: 12:00 PM

• 10/19 – Estate Planning 101
  • Where: Online Register Today!
  • Time: 9:00 AM
    • Topics of discussion include:
    • Estate Planning Terminology;
    • What happens when you die in Florida with/without an estate plan;
    • Common mistakes made; and
    • Five documents that everyone should have

Stay tuned for daily offers during Estate Planning Week via the LegalJourney Blog!

Estate Planning 101 will cover the basics of Estate Planning in Florida, including but not limited to:

•    Estate planning terminology;

•    What happens when you die in Florida with/without an estate plan; 

•    Common mistakes made; and

•    The five documents that everyone should have.

Day 7: Free Online Trust Based Estate Plan Package¹

The LegalJourney Law Firm is providing a free “Online Trust Based Estate Plan Package” for the first 2 individuals who sign up for a new client account via the online legal services link at www.legaljourney.com. 

To set up a free online account:

1.     Go to www.legaljourney.com;

2.     Select “Click Here For Online Legal Services”;

3.     Select “Register for a New Online Legal Services Account today!"

Create a user account and you will be notified within 24 hours if you will be a recipient of todays offer.

The LegalJourney Law Firm’s Online Will based Estate Plan Package includes: a Will, a Living Will, Health Care Power of Attorney, HIPPA Authorization and Durable Power of Attorney.

To find out additional details, please contact the LegalJourney Law Firm PLLC

¹This offer is available until close of business January 10th, 2013.

Day 5: Free Online Will Based Estate Plan Package¹

The LegalJourney Law Firm is providing a free “Online Will Based Estate Plan Package” for the first 2 individuals who sign up for a new client account via the online legal services link at www.legaljourney.com. 

To set up a free online account:

1.     Go to www.legaljourney.com;

2.     Select “Click Here For Online Legal Services”;

3.     Select “Register for a New Online Legal Services Account today!"

Create a user account and you will be notified within 24 hours if you will be a recipient of todays offer.

The LegalJourney Law Firm’s Online Will based Estate Plan Package includes: a Will, a Living Will, Health Care Power of Attorney, HIPPA Authorization and Durable Power of Attorney.

To find out additional details, please contact the LegalJourney Law Firm PLLC

¹This offer is available until close of business January 8th, 2013.

Day 2: Save $300 on a Will Based Estate Plan¹

The LegalJourney Law Firm is providing $300 off a customized “Will Based Estate Plan” for anyone who contacts the firm prior to close of business on January 11, 2013 and schedules an appointment for a consultation.

The LegalJourney Law Firm’s Will based Estate Plan includes: a Will, a Living Will, a Health Care Surrogate, HIPPA Authorization, a Declaration of Preneed Guardian and a Durable Power of Attorney.

To find out additional details, please contact the LegalJourney Law Firm PLLC.

¹This offer is available until close of business January 11th, 2013.