Orlando Estate & Elder Law

Advance Directives Part of Legal Health

“Advance directives come up frequently in conversations about health care decision-making, as people age. Their purpose is to provide written instructions for medical care, in instances where a patient is unable to communicate them herself.

An advance directive is a legal document that states a person’s preferences for medical treatment and medical decision-making, reports Valley News in an informative article titled “Advance Directives Provide Clear Guidance for Care.”

There are two components that make up an advance directive: a designation of health care surrogate or durable power of attorney for health care and a treatment preferences section.

The designation of health care surrogate allows you to appoint someone to make medical decisions if you lack the capacity to make those decisions for yourself.

The treatment preference, which is sometimes referred to as a living will, lets you specify what kind of treatment you would want in a difficult circumstance. Treatment and care preferences usually focus on what you would want at the end of life or if you were in a permanently unconscious state. There are other preferences that can be expressed, including pain control, blood transfusions, mental health care and spiritual care. Another preference: who should—and should not—be involved in discussions about treatment.

Most people want to express their wishes to avoid aggressive measures being taken to extend their lives when the end result will be suffering and a delay of their passing. Others chose to avoid the financial burdens that may or may not result in any kind of change in their health or the quality of their life.

Some have these documents prepared to make it clear that they want to spend their final months, weeks or days at home with loved ones with care only to relieve pain or care, so they can be conscious and able to speak with those around them.

Advance directives are a blessing to loved ones since they do not have to make hard choices in a crisis situation. They know what their aging parent or spouses wishes.

It’s important to choose the person you want to be responsible for your care well in advance. Make sure it’s someone you trust, who knows you well and will be able to make hard decisions in a highly emotional time. They’ll also have to be able to communicate with your doctors and family members.

These documents are bound by the laws of your state, so speak with an estate planning attorney who practices law in your state of residence. They’ll be able to prepare these documents on your behalf, along with a will and other estate planning documents.

For more information about estate planning in Orlando, FL (and throughout the rest of Central Florida), visit our estate planning website and be sure to subscribe to our complimentary estate planning e-newsletter while you are there.

Reference: Valley News (Sep. 1, 2018) “Advance Directives Provide Clear Guidance for Care”

You Bet Your Life?

“While a general POA is used to grant business decision-making authority, a health care POA (“H-POA”) governs health and medical decision-making authority.”

Selecting someone to make health care decisions for you when you are unable, requires a great deal of trust and is considered by many to be the most important estate planning tool, according to The Daily News in “Choose Health Care Power of Attorney Carefully.”

The Durable Health Care Power of Attorney—H-POA—is similar to the general POA in that both can be used to provide your representative with either very broad or very limited acting authority.  However, they are also very different. The H-POA can be drafted to retain its effectiveness, while you are alive and after you pass away. (In Florida, the term we use is Health Care Surrogate.)

The critical thing about an H-POA is the ability to tell the person you chose of your wishes about many different types of health and medical decisions. You can tell him or her exactly what medical treatments are acceptable to you or which you do not want to be used. That includes surgical intervention, autopsies, resuscitation, life support, organ donations and even whether to donate your body or specific portions of your body to science, medicine or education.

A less dramatic part of your H-POA concerns your representative’s right to access and disclose medical records.

The H-POA is a critical document that may make a life-or-death impact for you. In addition to selecting a person who you trust and count on to act as you wish, even if it is against their values, you’ll want to select an estate planning attorney who can create the document to achieve your health and medical wishes.

You do retain the right to revoke or change your H-POA at any time. You can do so verbally, by notifying your agent or your healthcare provider. It may be better to do this in writing. You can also draft a new H-POA, which revokes any previously written documents.

 However you chose to revoke the H-POA, make sure that your representative and estate planning attorney know that you wish to do this. This should be done in writing to avoid any misunderstandings or confusion.

If you use an H-POA, remember that it supersedes the directions and wishes of anyone except you: that includes your spouse, your children, your next of kin and your healthcare provider.

If you chose to have lifesaving care, your agent cannot tell your doctor to withhold care.

 You should also tell your spouse, next of kin and any children that you have named someone to the position of H-POA. Make sure to also tell that person, so it is not a surprise to them. They may choose not to take on the responsibility, so be prepared with a contingent person.

Talk with an estate planning attorney to make sure these documents are drafted carefully and correctly.

For more information about estate planning in Orlando, FL (and throughout the rest of Central Florida), visit our estate planning website and be sure to subscribe to our complimentary estate planning e-newsletter while you are there.

Resource: The Daily News (Memphis) July 25, 2018 “Choose Health Care Power of Attorney Carefully”

A Self-Adjusting Advanced Directive?

A doctor in New York has created a new type of advanced medical directive that is meant to be specifically for when people suffer from dementia.

As a general part of estate planning, it is important to also plan for end-of-life scenarios when you might not be able to make your own decisions because of dementia or some other disability. This type of planning is fairly standardized.  It normally consists of a general durable power of attorney, a designation of health care surrogate and a living will.

One perceived issue with these forms is that they only become effective when someone has reached the stage of being completely unable to handle their affairs on their own. The documents do not take into account what happens as someone slowly loses their cognitive abilities due to dementia.

The New York Times reports on this problem in "One Day Your Mind Might Fade. At Least You'll Have a Plan."

A doctor has come up with a new advanced directive that accounts for the different stages of dementia and cognitive decline. It lets people decide what they would want at each stage of decline.

The idea is that this approach gives people more control and helps them create a better plan for dealing with Alzheimer's and other forms of dementia. However, not everyone is convinced that this new directive is necessary. Many people believe that existing end-of-life documents are adequate.

If you are interested in this new directive, it is a good idea to go to an estate planning attorney so you can not only plan for your estate but also make plans for your own end-of-life care.

For more information about estate planning in Orlando, FL (and throughout the rest of Central Florida), visit our estate planning website and be sure to subscribe to our complimentary estate planning e-newsletter while you are there.

Reference: New York Times (Jan. 19, 2018) "One Day Your Mind Might Fade. At Least You'll Have a Plan."

Quick Start Your Estate Planning

When you start planning your estate, it is a good idea to ask yourself a few questions that will help you clarify your thinking.

If you have never engaged in the estate planning process, then getting started can seem somewhat overwhelming. There are many decisions you need to make concerning how your assets will be distributed.

Hiring a good estate planning attorney is essential to getting a good plan. The attorney can help guide you into making good decisions.

 However, you do not need to wait until you see the attorney for the first time before making some key decisions.

Asking yourself the right questions can get you started.

Market Watch offered some suggestions in "Giving your money away when you die: 10 questions to ask," including:

• Do you have more than enough money to meet your own needs? This will help you figure out whether you want to start a “gifting” plan to shrink the size of your estate.
• If you cannot make your own medical decisions at the end of your life, who would you like to make them? This will help you make sure you get an appropriate person named on a health care surrogate designation (power of attorney.)
• Will the federal estate tax be an issue for your estate? If you are not a multi-millionaire, you will not need to worry about the tax.
• Does your state have its own estate or inheritance tax? While most states have abolished their estate taxes, a few still have them. Therefore, it is important to know whether your estate could be affected by your state's taxes.
• Have you investigated any charities that you want to support? If you plan to leave some money in your estate plan to charity, it is important to make sure the charities you choose are reputable.

For more information about estate planning, beginning or advanced,  in Orlando, FL (and throughout the rest of Central Florida), visit our estate planning website and be sure to subscribe to our complimentary estate planning e-newsletter while you are there.

Reference: Market Watch (Oct. 29, 2017) "Giving your money away when you die: 10 questions to ask."

Easing The Way Toward Time to Go

When an elderly person is extremely ill and unlikely to survive, it is time for doctors and family to discuss how long the patient should be kept alive. It is not an easy conversation for anyone involved.

In recent years, medical science has made tremendous advances. People can now be kept alive far longer than they ever could at any other time in history.

While that is generally good, it does have some drawbacks.

Many of the people that medical science can keep alive today have no chance of ever making a full recovery and returning to a normal life. Instead, keeping them alive means keeping them on life support in a hospital, often in great pain, indefinitely.

Recently, an anonymous doctor wrote about how difficult it can be in these situations to talk to patients about whether it is time to go.

The article appeared in The Guardian with the title "My patient is 93 and has pneumonia. It's time to talk about her death."

Most of the time, the uncomfortable conversations mentioned in the article can be avoided by doing some advance planning.

Advance medical directives, including living wills and health care powers of attorney, make it possible for people to give directions regarding when doctors should no longer keep them alive and who should make any medical decisions, if there are any to make.

With advance medical directives, you can make decisions now while you are still able and avoid the pain of having others make them later.

Most estate planning attorneys offer advance medical directives as a matter of course in estate planning. Talk to one today.

For more information about estate planning in Orlando, FL (and throughout the rest of Central Florida), visit our estate planning website and be sure to subscribe to our complimentary estate planning e-newsletter while you are there.

Reference: The Guardian (July 6, 2017) "My patient is 93 and has pneumonia. It's time to talk about her death."

Important Lessons for End-of-Life Planning

When planning for your end-of-life care there are some important things to keep in mind beyond just having the proper legal documents in place.

You likely have heard that you need a durable power of attorney, a health care power of attorney and a living will in place for your end-of-life care. If you have not, then be advised that these documents are necessary for someone else to take care of your affairs when you are no longer able to do so and to let health care professionals know what treatments not to use to prolong your life when you have no hope of recovery.

Talk to an estate planning attorney to get these documents if you do not already have them.

Beyond those documents, however, there are a few other things that you need to do as Barron's points out in "Three End-of-Life Estate Plan Lessons."

The other tips include:

• If you have an estate plan, then it is important to let your family know what state you want to be in at the end of your life. Your estate plan should be tailored to the individual laws in your state. If you are moved to another state, the plan might not be as effective.
• You need to pick the strongest surrogates for your powers of attorney as possible. They need to be people who know how to handle things. They also need to be people who have the willpower to stand up to other loved ones who might disagree with the decisions being made.
• If you think your child might be overly emotional or too heartbroken, do not put that child in the position to tell the doctors when to remove you from life support. Pick someone else to do that.

For more information about estate planning in Orlando, FL (and throughout the rest of Central Florida), visit our estate planning website and be sure to subscribe to our complimentary estate planning e-newsletter while you are there.

Reference: Barron's (Nov. 8, 2016) "Three End-of-Life Estate Plan Lessons."

Musical Wishes And Other Special Plans

More than ever before people are planning for their end-of-life circumstances. Some even plan for what music they want played while on their death beds.

Many people today make plans for their end-of-life care. Some of those plans have legal effect, such as living wills, general durable powers of attorney and health care powers of attorney. Other plans are more aspirational.

While some people might prefer to pass away at home instead of in a hospital or hospice, those “plans” can be thwarted by medical necessity. Another somewhat aspirational plan is a “singing will,” as described by New York Times columnist Mark Vanhoenacker in "My Deathbed Playlist (and Yours)."

The idea is to create a list of the music you want to be played when you are at the end of life. It is a playlist of songs that meant something to you during your life – the hearing of which will make the experience of passing away more meaningful.

At least, that is what the people who create them believe.

Of course, a singing will has no legal effect and the circumstances of someone passing away might preclude the playing of specific music.

Regardless, you should plan for your own end-of-life care.

Everyone should have the basic legal documents of a living will, a general durable power of attorney and a health care power of attorney created long before they anticipate needing them.

Creating a singing will might not be for everyone, but for those interested creating one cannot hurt anything.

For more information about estate planning in Orlando, FL (and throughout the rest of Central Florida), visit our estate planning website and be sure to subscribe to our complimentary estate planning e-newsletter while you are there.

Reference: New York Times (Nov. 5, 2016) "My Deathbed Playlist (and Yours)."

Planning for the Unthinkable - Alzheimer’s Disease

Good estate planning does not just concern itself with what happens to your assets after you pass away. It also takes into account the things that you might need at the end of your life, including the possibility of getting Alzheimer’s disease.

Obviously, major components of any estate plan include determining who gets your assets after you pass away and the best methods to accomplish that. For many people these are only aspect of estate planning they consider.

In reality, however, it is extremely important that estate planning does not stop there.

A big part of estate planning is also making sure that your needs will be met at the end of your life. Ideally, this is done so you will still have an inheritance left for your heirs. As there is a good possibility that at the very end of your life you will be sick and in need of care, estate planning is thus also about planning for that sickness.

As Market Watch points out in “What to know about Alzheimer’s and retirement planning,” getting care for Alzheimer’s is more expensive than getting care for other common end of life conditions. Therefore, the cost of Alzheimer’s is a good benchmark for planning.

Estate planning for Alzheimer’s is not just about money. It is also about making sure you have already planned ahead and legally appointed a capable person or persons who can look after your affairs. That means getting a durable power of attorney and a health care power of attorney (healthcare surrogate designation).

As an estate planning attorney who is a specialist in elder law, I can help you with all of the necessary details.

Reference: Market Watch (July 7, 2016) “What to know about Alzheimer’s and retirement planning”

Understanding Alzheimer's Disease

Alzheimer's disease is a frightening thing to think about getting for anyone. Understanding what we know about the disease can help lessen that fear, but one of the most important things to understand about Alzheimer's is what we still do not know about it.

Everyone knows what the end stage of Alzheimer's disease is like. Thinking about getting it can give anyone the chills. What are not as well known are the early stages of the disease and the current state of scientific understanding about them.

Recently, the New York Times attempted to explain that in "What Is Alzheimer's Disease?"

Anyone who has ever lost her car keys and wondered if she was getting Alzheimer's can rest easy. Minor lapses of memory are common and often increase with age. They are not necessarily a sign Alzheimer's is present.

Alzheimer's is diagnosed by assessing memory loss that regularly impedes basic life functions. Beyond that, however, the current scientific knowledge about the disease is somewhat lacking. It is uncertain what causes the disease in the majority of cases.

A genetic marker that has been shown to increase the likelihood of Alzheimer's is only present in a minority of patients. Medications are available to treat Alzheimer's, but they only slow its rate of progress for a little while. There is currently no cure.

Even though there is still a lot to learn about Alzheimer's disease there is something that everyone can do about it. Everyone should get a health care directive and a durable power of attorney so that if they are unfortunate enough to get Alzheimer's a trusted person can have legal authority to handle their affairs.

Please schedule a consultation if you need these essential documents or have not updated yours within the past few years.

Reference: New York Times (April 30, 2016) "What Is Alzheimer's Disease?"

Steps and Help After A Terrifying Diagnosis

If you or a loved one is diagnosed with Alzheimer's disease, it is important to take immediate steps to ensure that end-of-life care is as comfortable as can be.

There is a common myth that people with Alzheimer's are completely incompetent and cannot be trusted to make their own decisions. It is not true as the early stages of the disease are relatively mild.

People who are diagnosed with the disease early enough can still make their own decisions. However, as the disease progresses most do eventually lose the ability to make their legal decisions as NorthJersey.com points out in "Planning becomes vital following Alzheimer's diagnosis."

The article suggests that people who receive an Alzheimer's diagnosis should get a durable power of attorney, a designation of health care surrogate (healthcare power of attorney) and a living will.

The powers of attorney will allow the person to appoint someone else to handle financial and medical affairs, respectively, when the Alzheimer's patient is no longer able to do so. The living will is used to give advanced directives about what type of treatments doctors should employ to keep the patient alive.

These are critical documents to have.

Getting them after an Alzheimer's diagnosis is solid advice. However, even better advice is not to wait until after receiving such a diagnosis. All three documents are part of general estate planning. There is no need to wait until you know you will need them to get them.

Plan ahead and get them now before an issue of competency is raised.  Please make an appointment to prepare, review or update those and other vital planning documents.  And remember, no matter how terrifying a diagnosis, we are here to help.

Reference: NorthJersey.com (Dec. 27, 2015) "Planning becomes vital following Alzheimer's diagnosis."