Q: My aging parent has a will naming me executor, isn’t that enough for me to take control now?
A: No, your parent’s will comes into play once they have passed away. Prior to that event an executor has no control over the parent’s current well-being.
Suppose an elderly family member becomes incapacitated and has made no arrangements for such a situation. Advance directives are legal instructions that express a person’s wishes regarding financial and health care decisions in the event that he or she becomes unable to make them. If incapacity occurs and there are no advance directives, is guardianship a viable option?
Guardianship for an adult differs from guardianship of a minor child. For minors, it involves parenting because children require adult supervision until they reach a certain age. Further, minors have not yet earned societal rights, such as the right to vote or drive, so they do not give up any rights with guardianship.
By contrast, an adult who is accustomed to making his or her own decisions, typically loses the right to vote, hold a driver’s license, marry, and draft a will (laws may vary by state) when placed under guardianship. The guardian, appointed by the court, becomes the decision-maker with the power to make some, if not all, financial and health care decisions for an incapacitated person.
Guardianship for an adult is considered to be a serious intervention and is not enforced until after a clear need becomes evident. At a minimum, most states require a court hearing and examination by a physician and/or psychologist to determine incompetence. The person for whom guardianship has been petitioned (i.e., the ward) must be informed of his or her rights and notified that a court hearing has been scheduled. Proposed wards generally have the right to retain an attorney and to object to the petition for guardianship, even if incapacity prevents them from attending the hearing.
It is important to understand that bouts of confusion or eccentricity do not necessarily indicate mental incompetency. For example, an older individual may appear to be spending money frivolously, but that alone may not indicate an inability to manage his or her personal finances. Or, consider what would happen if the court appointed a guardian for someone in a coma who later recovers consciousness.
Therefore, guardianship for an adult is used only as a last resort in the absence of advance directives.
Advance directives can help a person plan for a variety of possible situations. A durable power of attorney grants authority to another person to make legal and financial decisions on a person’s behalf in the event of mental incapacity. The powers granted can be broad or limited in scope. I’ve seen them range from 3-30 pages depending on the attorney and situation. A durable power of attorney can provide assistance with personal finances, insurance policies, government benefits, estate plans, retirement plans, and business interests. In MA a power of attorney is the most effective option to voicing advance directives.
A living will allows an individual to state his or her preferences prior to incompetency regarding wishes for financial, health, and giving or withholding of life-sustaining medical treatment. In most states, a person must have a “terminal condition,” be in a “persistent vegetative state,” or be “permanently unconscious” before life-support can be withdrawn. In MA, this is not a legally binding document and would only be reviewed by a judge as evidence of intention in absence of a power of attorney. While not legal, they are a great supplement to estate planning documents as they provide guidance to those named as agent, especially as it relates to funeral arrangements, care measures, etc.
A health care proxy allows a person to appoint an agent to make health care decisions on his or her behalf in the event of incapacity. These medical decisions are not limited to those involving artificial life-support. A health care proxy is typically done in conjunction with a HIPAA form so that the named agent is also given access to medical records.
A medical orders of life sustaining treatment (MOLST) has recently become more popular in MA as it greatly expands upon the popular do not resuscitate order. MOLST outlines a patient’s preference for giving or withholding any type of medical treatment. The MOLST is filled out by a medical professional alongside the patient when there is a specific illness requiring care. Unlike the durable power of attorney and health care proxy, this should not be done by an attorney as a general preventative measure. In NH this document is known as physicians orders for life sustaining treatment (POLST).
When creating any of the above estate documents, try to name contingency agents and avoid naming co-agents. A contingency agent would step in if your first choice can’t serve. Naming 2+ people for a single role can be challenging for everyone involved and create unnecessary complication. For instance, if you have two children, name one as primary with the other as a contingency instead of naming them as co-agents. If that makes you feel guilty for having to choose one over the other, don’t. In fact, I’d take the one you name as primary agent out to dinner since they’ll be doing all the work and will likely be getting just as much inheritance as the sibling that did no work. Sorry, but I’m calling it like I see it! If you still feel guilty about the perception of choosing a favorite, you can also name each child the primary of different roles. It’s not uncommon to see a supportive personality given the role of health care proxy and the type A personality named durable power of attorney. Some attorneys dislike this approach, but it works well when everyone is periodically reminded of their role and responsibility. I prefer this tactic as well because it doesn’t overwhelm any one person with the responsibility of an aging adult and allows them to act in their best capacity based on their personality and skill set.
Time Is of the Essence
Advance directives by durable power of attorney, living will, health care proxy, and medical orders for life sustaining treatment are generally inexpensive and easy to implement. They are essential estate planning tools available to everyone, regardless of age. In the absence of such documents, court intervention to appoint a guardian may be necessary. This could involve a great deal of time, expense, and stress at precisely the moment when ease of action is of the greatest importance.
How to get started?
The Honoring Choices program in MA is a great way to start. They provide toolkits based on your stage of medical need: everyday wellness, chronic, and advancing illness. Learn more about the program and the kits here: https://www.honoringchoicesmass.com
Are you unsure if an older adult in your life has the correct documents in place? Take a look at The Conversation Project for ways to broach the topic. They also have kits that get to the heart of everyday challenges, as well as dementia and pediatric illness.
Work with an attorney on drafting estate documents that are specific to your situation, location and family dynamics. Powwow, LLC has a number of non-biased references that specialize in creating documents for families, seniors, Medicaid applicants, etc. Reach out to discuss further.