Heard at the Office: “Can’t My Spouse Automatically Speak for Me at the Hospital?”

January 30, 2014

Filed under: Estate Planning,Medical Care — Alexis @ 10:40 AM

Under the law, no. In real life, sometimes.

Many people think that they don’t need to sign a Health Care Proxy because they assume that the law permits their spouse to speak for them in medical emergencies. The law actually says quite the opposite. Only you or someone you have named in a Health Care Proxy has the authority to make medical decisions for you.

Real life doesn’t precisely follow the law. If hospital staff get the sense that the family all gets along and don’t think anyone in the family will have an issue with the well-spouse being the decision-maker, they will often turn to the well-spouse to make the decisions. But if hospital staff sense any dissent among the family, they will want to see a Health Care Proxy.

But what if you never signed one? Well, the hospital will tell your family that they need to go to court to have a guardian appointed. That costs a lot of money (your money, by the way), and takes a lot of time and emotional energy.

And even if the family all gets along just fine, there are other reasons hospital staff may ask to see a Health Care Proxy (and if there isn’t one, send your family off to court). For example, if you need antipsychotic medications, like anxiety or depression medications, the staff will ask to see a Health Care Proxy. Another common example arises when hospital staff considers inserting or removing a feeding tube, or using or discontinuing use of a ventilator. As you can see, even if your family gets along, the hospital staff still will need to see a Health Care Proxy (or, you guessed it, send your family off to court for guardianship).

Moral of the story? Put a Health Care Proxy in place now. It doesn’t take much time at all.

Big Step Forward for Alzheimer’s Care & Research

January 24, 2014

Filed under: Alzheimer's — Alexis @ 2:57 PM

On January 17, President Obama signed a funding bill containing what the Alzheimer’s Association calls “an unprecedented $122 million increase” for Alzheimer’s research, education, outreach, and caregiver support.

The specifics, as outlined in the Alzheimer’s Association press release, are as follows:

• A $100 million increase for the National Institute on Aging for Alzheimer’s research, which will be added to what the National Institutes of Health (NIH) estimates will be $484 million in Alzheimer’s research funding across NIH in fiscal year 2013.
• A further $3.3 million has been provided to support Alzheimer’s caregivers.
• $4 million to train health professionals on issues related to Alzheimer’s disease.
• $10.5 million to expand the home and community based caregiver services.
• $4.2 million for outreach activities to raise awareness.
• The National Institutes of Health’s BRAIN Initiative will receive $30 million to support brain research that could impact several diseases, including Alzheimer’s.

This is an enormous step forward for families living with Alzheimer’s as well as for the future of Alzheimer’s care.

Read the full press release here.

Life and the Afterlife: Durable Powers of Attorney & Health Care Proxies vs. Wills

January 14, 2014

Filed under: Estate Planning — Alexis @ 2:15 PM

There is some basic vocabulary that almost everyone mixes up. Understanding which word to use when will help you better understand your estate planning documents.

During Life

During your lifetime, you want to have someone as “backup” to help you with your finances and personal business should you become incapacitated. (Or if you decide you’ve just had enough paperwork for one lifetime and would like to hand off financial management off to someone else.) You do this through your durable powers of attorney, and the person you name is called your agent.

You also want to name someone now to make health care decisions for you if at some point in the future you can’t make or communicate your own. You do that though a health care proxy, and the person you name is called your agent.

In the Afterlife

After you pass away, the durable powers of attorney and the health care proxy become null and void. At this point, your assets will be managed by others in one of two ways, depending on how you held title to the various assets during your lifetime: (1) nonprobate and (2) probate.

Nonprobate assets are those assets on which you have put someone else’s name along with yours, such as joint ownership on a house, listing a beneficiary on a life insurance policy, or listing a “payable on death to” on a bank account. Whomever you named will take ownership of that asset at your death, either automatically or by filing simple forms with the financial institution holding that asset.

Probate assets are those that are in just your name, for example if you are a single person and own your home, or if you have a bank account in your name alone. Those assets will be governed by your will, and the person you name is your personal representative. That’s actually a new term – the Massachusetts legislature recently overhauled the probate laws. The person you name as the “manager” under your will used to be called the executor. Your personal representative will manage the assets and distribute them to the devisees that you have named in your will.

Where Do Trusts Fit in?

Trusts serve you both during your lifetime and after you die. You will name someone in your trust to serve as the “manager” – that person is called the trustee. It is very common to name you (the “grantor” or “settlor” of the trust) as the first trustee, and to name successor trustees to take over during your lifetime should you need help, as well as after you die.

If your attorney drafts a trust for you, she will most likely tell you which of your assets to transfer to the trust. For any assets held by the trust while you are living, the trust acts like a durable powers of attorney: If you become incapacitated or if you would simply like someone else to manage the trust assets for you, then whomever you have named as your (successor) trustee can manage those assets while you are living. After you die, the trust acts like a will: The trustee will manage the assets and distribute them to the beneficiaries that you have named in the trust.

[Side Note: If you have a trust, then you may be wondering why you also need a durable powers of attorney and a will. There are two reasons: First, not every type of asset can be placed into a trust, for example, retirement benefits. Second, you want these extra documents as “back up” in case over the years you acquire new assets or open new accounts and forget to list the trust as owner.]

Understanding which word to use when will help you have a more productive conversation with your elder law attorney (and to impress your friends).