Virginia LootensWritten By: Virginia Lootens, Attorney at Law
The Basic Tenets of Elder Law and the Importance of Planning Ahead
The legal needs of the elderly are many and diverse. As we age, some of the things that used to be so easy for us, are now becoming very difficult. Maybe we are getting a bit forgetful, or we're having trouble getting around; perhaps some persons we regularly depended on, are no longer available to us, and we are beginning to stay at home more. Recognizing the legal needs of the elderly, many attorneys have developed practices specifically designed to serve the elderly client.
Rather than being defined by the technical legal distinctions, elder law is defined by the client to be served. In other words, the lawyer who practices elder law may handle a range of issues but has a specific type of clients - seniors. For example, many elder law attorneys make "house calls" to facilitate an elder who is confined to the home.
Under this approach, the elder law practitioner handles the issues that are facing the elderly client: income stability, health care, Social security, Medicare, and Medicaid, to name a few. It is critical to be informed about decisions that can be made simply and inexpensively while the elder still knows his family and himself. Once incapacity has arrived, decision making for the elder will be very limited. Working to insure the elder's right to quality and compassionate care is the overriding goal of the elder law attorney.
Importance of Planning
A few moments of planning can prepare for the time when managing personal or financial affairs becomes difficult or impossible. There are several documents that can make that preparation a relatively simple process.
DURABLE POWER OF ATTORNEY: This instrument designates another person to be the attorney-in-fact, to manage one's financial affairs. A trusted family member or friend can be authorized to manage investments, real property holdings, personal property items, public and private benefits, and even a business...or not.
MEDICAL POWER OF ATTORNEY: This document designates another person to be one's agent in making health care and personal care decisions if the principal is incapacitated.
THE LIVING WILL (DIRECTIVE TO PHYSICIANS): This important document designates how the elder will be treated at the end of life; if a terminal condition or an irreversible condition is present, the elder can decide how care-givers may proceed. The living will allows the individual to decide whether to decline resuscitation, extreme measures, and/or to discontinue hydration or nutrition..or not.
GUARDIANSHIP: This process provides for the appointment of a Court-supervised guardian of the person and estate of an incapacitated individual. The Texas Probate Code has established the requirements for this process, which frequently has to be initiated if an individual has not made preparation for incapacity.
WILLS AND TRUSTS: These documents designate the orderly transfer of one's property: the will, at the time of death, and the trust, if special estate planning issues are present, either before or after death. f an individual does not make these kinds of decisions concerning the distribution of their estate, at the time of death, the Texas Probate Code will make the decision for you.
The documents listed above have very powerful outcomes. In our opinion, the elder truly needs someone such as an elder law attorney, to explain how each document works and to follow through with the process.