Docs to Die with....

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Pam Williams Pam Williams

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Docs to Die with....
By: Pam ~ 2/2/2018

Why is this discussion important for you?
Why should you care?
How will it affect you?

Scenario #1
My adult daughter recently relocated to another State. She is single and lives alone. My concern started because she had to finish some banking and personal papers in one state while now living in another. How can I help?

Scenario #2
My husband had a mild heart attack. He was unable to tell what treatment of care was his wish, and by whom. I thought I had the authority to take care of this. Apparently, since I am the second wife and he has adult children from his first marriage, I am having difficult time advocating for him. One of his adult sons does not agree with my decisions. The hospital and nursing facility seem conflicted with who they are to take direction from. Why?

Scenario #3
My dad refuses to pay his utility and rent bills because he would rather play lotto. He is stubborn, but not incapacitated. How can I help?

I know my significant other will not be able to cope with end of life decisions. What can I do to make sure my wishes will be followed?

Any of this hit a nerve? Currently an issue? See it coming down the road?

Well you are my target audience for this information and conversation.

I just returned from eight solid weeks of traveling to another part of my state to assist in a family crisis. My brother (50 years old) recently had a medical event. He had no documents to guide assistance (money, employment, medical limits, death instructions) while he was in a medically induced coma.

The hospital and rehabilitation center had to go by their rules. No wife, no kids, etc. Therefore, we are at “next of kin” status. That left my 82-year-old mother, who has moderate dementia, to make all decisions for my brother. I know she wanted to help her son, but she just could not muster the cognition or protocol to work with any medical team. Unfortunately, her fierceness to protect her “child” and her compromise of cognition left my brother in a circumstance of no one moving his progress along.

I dealt with the problem directly, because his life was at stake. I downloaded a free Power of Attorney off a site for my state. I worked with medical records to notarize this POA as soon as he had conscious. We filled out an advanced medical directive, because I had no idea if he was going to live or die. This set of circumstances sent me into an emotional spin I do not want to recreate. I had to displace my mom in the ability to make medical decisions. I had to now be the conduit to share and receive all information amongst family. (One concern was how private I keep this for him, and what do I share). Work with his employer, his medical team, his landlord, etc. All these decisions had to happen without his input (on many issues).

Had anyone at any time offered to fill out free forms, pre-plan his requests, have contact information, etc., Wow, what a difference it could have made. Lesson learned.

Therefore, I offer this example, to offer this solution. Let us get some plans in place NOW! So here is an introduction to the forms that should keep you in the driver’s seat.

  • Many are free to download.
  • Be sure they are State or Province specific
  • Update when people, places, or things are no longer in existence or advisable
  • Make sure anyone you designate in a significant role has a copy
  • Make sure you are comfortable with the specifics for your jurisdiction

REMEMBER – Just because they are family does not make them the best candidates to be appointed in any of the following documents. These are your wishes to occur during both life and death. Don’t be bullied or sign under duress. AND strongly consider a clause in your Will that states “anyone contesting all or part of this Will is required to pay all associated fees, and WILL NOT inherit from this Estate.  Just because someone does not have “much”, it can more than others do. Death, remarriage, and the like stir up many emotions on both sides that may not have been dealt with during life. This is one of those situations. Protect your wishes!

The Will
This document informs others, institutions, agencies, family, and anyone of your sphere, of you final wishes to deal with the property, funeral requests, transfer of property, paying of liabilities, etc.

You will designate someone (or organization) to be the Executor or Personal Representative in charge of this. This person takes on any legal or tax obligations to be dealt with. (That does not mean they take on debts personally). You can state if they may be paid or not, many will if there is significant work to be done.

You can state penalties for anyone contesting the will (come on, you know your family!) You can designate an alternative of designee in case your primary is unable to perform at the time.  You can make changes to this document be adding a “codicil” or amendment. You do not have to redo the actual Will for a change, just date and sign after the last codicil.  You can put limits, guidelines, preferences, conditions etc. on the activities to be done.

In some courts, two independent witness signatures are required to validate your Will. Otherwise, a notary is highly recommended. If the estate is sizeable, the use of a competent attorney to draft it may prove most valuable. Many attorney firms have prepackaged Will services. You can certainly shop around.

Keep it current, keep it appropriate and talk with your designees.

You may want to explore a Trust as an option. A Trust is a pool of assets (cash, investments, real property, etc.) held for the benefit of a third party – the beneficiary (ies). A Trustee is appointed to oversee the management of the Trust. If a Trust is put in force while you are alive, it is a living Trust and you are typically in charge.

Trusts are sometimes used to avoid probate after death. They are usually costly to set up. It can prevent your financial affairs from becoming public knowledge.

The Power of Attorney – Finance
A Power of Attorney is a written authorization to represent or act on another’s behalf in private affairs, business, etc. This is sometimes against other’s wishes. The person granting the authorization is the Principal or Grantor. The one authorized to act is the Agent or Attorney in Fact. Again Notarizing the Grantor’s signature is a wise step.

The POA is the popular and problematic. The good side:

  • It is cheap to create
  • It is a great tool for many issues (selling property out of state, opening or closing credit items).
  • It starts only when the Grantor wants it to start, or upon incapacity
  • Grantor chooses a primary and backup Agent
  • It can cease upon Revocation by the Grantor

The POA on the bad side:

  • Easy to create
  • Easy to manipulate
  • State by state governs the verbiage, limits and extents of the document
  • Especially for older people, the document can be “sold to them” by a self-serving family member, caregiver, neighbor, scammer, predator etc.

The POA can be put into use upon different circumstances:

  • Starts at signing (SPRINGING)
  • Starts immediately and continues through Incapacity (DURABLE)
  • Starts only at incapacity, a medical or physical event (SPRINGING)
  • To be used for a specific purpose-LIMITED (useful for out of State or County transaction (real estate, etc.)

Many financial institutions such as banks, brokerages, or credit unions will have their own POA documents. You should check with the ones you use. They are usually the first accounts that are abused by a fraudster.

Advance Directives
These directives often refer to a Medical POA and a Living Will. Both are critical to carry out YOUR wishes and concerns. Many hospitals and places of care have them. However, by the time you are getting them there, you may find yourself in a total different set of circumstances than any “discussions” you may have had regarding your care.

A  Living Will describes your wishes for healthcare. How minimal or invasive you want for procedures, treatments or medications. Life Support? How long or at all? It usually becomes effective upon signing. Again, you will appoint someone, and an alternative.
A Medical POA is much like the financial one. It is called a proxy, an appointment of healthcare agent or a DPOA for healthcare (D represents “Durable”). This document goes into effect when your physician says you are no longer capable. This incapacity can be short or long, per event, or per status. This document does not usually address your afterlife care.

None of these documents or directives can:

  • Authorize psychiatric treatment or surgery
  • Authorize sterilization or abortion
  • Admittance to a mental health facility
  • Authorize mercy killing
  • Go beyond any act not authorized in your healthcare directives.

You can now see how much control you have over your life wishes and afterlife plans. The more you have to deal with (people, property and health), you can begin to see where and when you may want professional assistance. Each State usually has an Attorney Bar Association specializing in an area called “estate planning”. You NEVER want to have your documents drafted by anyone who will gain in the transaction, other than their drafting fee.

Get Going!