Why should you see an elder law attorney when making your estate plan?
Many estate planning attorneys focus on writing wills and testamentary trusts, documents which divide up your “stuff” when you are gone.
Those who also practice elder law tend to focus on protecting you, keeping you in charge, getting you what you want while you are alive as well as helping you insure that those you leave behind are provided for.
Basic documents every adult Texan should have
There are basic documents which I believe every adult Texan should have. Some of these have been created by the Texas legislature as part of the Estates Code or the Health and Safety Code. Copies should be included in your chart at the doctor’s office, held by everyone they name, and kept in a “grab and go” file or uploaded to a USB marked “medical documents” and kept with you, perhaps in your wallet by your health insurance card.
HIPAA Medical Information Release Form
A HIPAA Medical Information Release form tells medical personnel with whom they can share information about your condition. These people should include the agent under your Medical Power of Attorney and, because there is so much medical fraud, the agent under your Durable Power of Attorney.
Medical Power of Attorney
The agent under your Medical Power of Attorney is your voice: the person who speaks for you when you cannot, whether you are under the knife or have suffered a stroke or are woozy from medicine or chemotherapy. To help your agent know that they are making the choice you would make if you could communicate, attach a letter. Your Medical Power of Attorney can be notarized or it can be signed by two witnesses.
Declaration for Mental Health Treatment
You may protest that you do not need to sign a Declaration for Mental Health Treatment. But a July 2014 study found that during a six-month period one out of five nursing home residents became temporarily delusional, deranged or demented due to a medication error. If this happens to you, you may just want to have a say in what happens next. At the very least, you may want the doctor who has never seen you before to contact and get your records from your regular physician.
Declaration of Guardian in Case of Need or Later Incapacity
You may also think that you will never need a guardian and so do not need to sign a Declaration of Guardian in Case of Need or Later Incapacity. You may be right. You may never need a guardian to replace a dishonest agent under your Durable [Financial] Power of Attorney. You may never find yourself taken to a memory care facility and be unwilling to remain. But do you want the nursing home to become your guardian, remembering to pay the rate it decides to charge and forgetting to sue itself for neglect or abuse?
Whatever happens, someday we will all leave our loved ones behind. We tend not to die so much of an acute illness but of a combination of chronic conditions. These could leave us in a permanent vegetative state or in a situation in which the doctors find that even with medical treatment we cannot be expected to be here for more than six months. An Advance Directive will tell your medical providers what you want in such a situation.
Body Disposition Affidavit
When you depart, someone will have to deal with your body. A Body Disposition Affidavit will let you decide who and decide what should be done. This is critical if you do not have a pre-need funeral plan. If you die in an assisted living facility or a nursing home, your body must be removed within 24 hours: there is no morgue on site. The court cannot issue an order on a weekend.
Durable Power of Attorney
When it comes to finances, some spouses hold bank accounts joint with right of survivorship and some people have convenience signers. Some people have one Durable Power of Attorney. Others have one for day-to-day bills and another, perhaps with co-agents, for investments. Still others use a revocable living trust which passes control when they lose competency to manage their financial affairs.
In addition to considering how to provide for others after you are gone, an elder law attorney who does estate planning will help you take care of you while you are here.
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Elder law attorney, Terry Garrett, is a member of the National Academy of Elder Law Attorneys and is active in the Texas and Austin Bar Associations. She graduated with honors from Cornell University. She was on the Dean’s List at Wharton Business School. She earned her J.D. at Columbia Law School, receiving the Parker Award and a Mellon Fellowship.
She assists families of people with special needs, people planning for the retirement years and people settling estates.