Elder Law
The broad subject heading of elder law, covers many areas that we think of when we consider the subject of aging. While it is not only the aged who have to be concerned with these matters, people over 50 are the majority seeking help from an attorney in this area.
Aside from advice, and consultation the three basic documents central to the concept of elder law are The Will, The Power of Attorney, and The Declaration of Living Will. Each of these documents has its place and its purpose. I generally recommend all of them together, to anyone who is considering even one of them.
One of the reasons I do is that no one knows whether they will need one of these documents at a specific time. In the case of the living will, we have no way to know whether we will ever need one. But if we find that we need one, it is already too late! The same thing can be said of the power of attorney. By the time the elderly person, and all his family know that he needs a power of attorney, it is often far too late for him to competently execute one.
- To avoid intestate distribution by statute. If you do not leave a will specifying exactly what you wish to have done, the state has kindly provided an artificial will for you. This is in the form of a statute which prescribes how your estate will be distributed among your relatives. it is almost certain that the state would not distribute your money or property in the same way you would like to. it may be that intestate distribution would prevent your favorite relative from taking anything! Your favorite charity could be left out.
- Avoidance of family conflict over intent. Family conflict which arises after death, is normally associated with a will contest, but the fact is that more conflict occurs in those instances where there is no will. usually family members know who the deceased intended to favor, and is that intimate knowledge which causes them to enter into conflict with other family members. The best insurance against family conflict is a well-written clear expressive will drawn by a professional. That way, everyone knows where they stand, right out of the horses mouth.
- Reinforcement of loving relationships. The things that you distribute by way of your will represent your last chance to show the people you care for how much you love them. A failure to leave a will can poison a lifelong relationship. a properly drawn will can strengthen and deepen such a relationship from beyond the grave.
- Sometimes the state gets everything! If you don't have any close relatives, and you die without a will, it is possible that the state may eventually inherit everything. The state does this by way of a special statute which causes your estate to escheat to the state. It is almost certain that no one ever dies intending for the state to inherit from them. But if you have no close relatives you almost certainly have a favorite charity or some non-related person you would prefer to receive your property.
- You want to do it your way. As hard as it might be to face the issue of death, to visit a lawyer's office (which is not really hard), and to set things down in writing, everyone really wants to do things their way, with their property.
- As an inexpensive, convenient alternative to a guardianship. Many people wait too long to execute a power of attorney allowing someone they trust to help them or takeover in performing daily and weekly tasks. Once they are no longer competent to execute a power of attorney there is no choice for their loved ones except to make application to the courts in a long expensive process, for guardianship of the person or the property or both. This proceeding takes months, requires at least one court hearing, and requires accountings from the guardian from that day forward. A durable power of attorney by contrast, is infinitely more flexible, can allow for any type of activity desired, and requires no application to the courts and no accounting.
- To provide an uninterrupted flow of money services and living conditions. You are used to doing things a certain way. You pay your bills in a certain way, you establish certain routines in your life, you eat certain foods, you live in a particular house and pay a particular mortgage payment. If you are no longer able to reliably pay your bills, do your shopping, pay your mortgage on-time, you risk serious disruption to you lifestyle. A well drawn and durable power of attorney will enable you to continue your lifestyle with help from someone else, long after you would have been able to do so on your own.
- When you are mentally disabled, it is too late to get a power of attorney. Just as no one knows how long they will live, no one knows when the day will come that they are unable to recognize members of their family, unable to speak, unable to reason, unable to know what they possess.
- To clearly state your desires for the record. Basically a declaration of living will states that you do not wish to have your life prolonged artificially by extraordinary medical procedures, when there has been a determination that you are going to die shortly regardless of what is done. The declaration prevents you from becoming an object of medical experimentation in the prolongation of "life".
- To end suffering, and avoid living as a vegetable. I think everyone who executes a declaration of living will carries with them an unpleasant vision of themselves strapped into a hospital bed, unable to speak, unable to object, perhaps unable to breathe (and having it done for them), tubes going in, tubes coming out, perhaps blind but certainly immobile and totally helpless.
- To relieve your family of the strain and guilt of such a decision. No one wants to be a burden on their family. But no one ever thinks of how much burden it is to make a decision to remove extraordinary life-support. Don't leave this decision for someone else to make. Guilt from the necessity of such a decision may last for a lifetime!.
There you have it. Those are the reasons for obtaining all three of the major elder law documents. The reason for obtaining all three at the same time is simple, it's cheaper!
If what we have said here is starting to make sense to you give us a call. We will be happy to work with you on these or any other elder law or estate planning documents. If you are house bound, too ill to travel, stuck in a hospital, or crippled we will be glad to call on you at your home.