Living trust. Even if you've picked the most competent and trustworthy person to manage your finances, that doesn't mean he'll know what should be done with your property. That's where a living trust comes in. This document can provide detailed guidelines on how your property should be managed if you become incapacitated.
Here's how it works: You transfer your investments, real estate and other assets into the trust and name yourself as trustee, so you maintain control of the property. As long as you're mentally competent, you can revise or revoke the trust. You also name one or more "successor" trustees to manage the property if you become incapacitated and include detailed instructions on how the money should be used if you are hospitalized or need long-term care. Unlike a power of attorney document, the living trust remains in force after you die and allows the successor trustee to transfer your property to your beneficiaries without having to go through probate -- the cumbersome process in which a court oversees distribution of property left in a will.
If you have a living trust, you still need a financial power of attorney to manage transactions that may fall outside the scope of the trust, such as dealing with credit card accounts. And by naming different individuals as your living trust's successor trustee and as your agent under a power of attorney, you can help assure that neither person abuses his authority.
Health care advance directives. It's hard enough thinking about how your health care should be managed if you lose decision-making capacity. But ensuring your medical wishes are followed can be a bigger challenge -- even for seniors who have completed the two main types of advance directives: the durable power of attorney for health care and the living will.
A living will documents your wishes regarding life-sustaining treatment. Find living will forms for each state at www.caringinfo.org. Some states combine the living will with a health care power of attorney in one form.
The health care power of attorney allows you to appoint someone to make medical decisions for you if you become incapacitated. You always have the right to revoke the document while you're mentally competent. You also can include specific instructions on how your agent should make your health care decisions. But as with financial powers of attorney, laws governing these documents can vary from state to state. And as patients move among various facilities and health care providers, the documents can easily fall by the wayside.
Fortunately, some new tools can help. The American Bar Association's Commission on Law and Aging last year released a new health care power of attorney form that meets legal requirements in all but five states. The form also walks users through the process of choosing a qualified agent -- sometimes called a "health care proxy" -- and thinking about the guidance they should give that individual. The document, titled Giving Someone a Power of Attorney for Your Health Care, is available at www.americanbar.org.
Seniors looking to include more details in their advance directives might consider the Five Wishes form, which meets legal requirements in more than 40 states. The form, available at www.agingwithdignity.org, allows users to designate a health care proxy and outline the care they want under various medical scenarios.
Although seniors can prepare advance directives on their own, they may want to enlist the help of a lawyer if they're concerned about coordinating all their advance-planning documents -- and preventing conflicts. If your health care proxy and financial agent are different people, for example, your power of attorney documents might state that the financial agent must pay for anything that the health care proxy deems necessary, Frigon says. And although your health care power of attorney gives your proxy access to your medical information, lawyers also recommend completing a separate authorization under federal HIPAA privacy rules so that health care providers can freely share your medical information with certain other family members.
Finally, start talking. "Advance directive documents are only worth the discussions they're based on," says Charles Sabatino, director of the ABA's Commission on Law and Aging. Carol McNama, 54, of Terrebonne, Ore., discovered that when she served as health care proxy for her uncle. If it weren't for the detailed discussions he had with her, she says, she wouldn't have felt comfortable carrying out his wishes.
While hospitalized after suffering a massive heart attack, McNama says, her uncle told her repeatedly that he wanted to be removed from life support if he could no longer speak or move. A few weeks later, a stroke left him completely paralyzed and uncommunicative. When doctors said that he wouldn't recover, McNama decided to remove his life support. "That was the hardest call I've ever made in my life," she says. But thanks to her uncle's clear instructions, she says, "I know in my heart I did the right thing."
Keep the originals of your advance directives in a safe, easily accessible place. Don't put them in a safe-deposit box, where others may have trouble gaining access to them. Give copies to your health care agent, back-up agent, family members and doctors.
Even if your family and friends know what type of care you want, Sabatino says, often the advance directive "doesn't automatically follow you from place to place, provider to provider. It's up to the patient and family to make sure it stays central to the discussion, and that's really difficult to do" during a medical crisis.
A new system gaining momentum among states may help solve that problem. Physician Orders for Life-Sustaining Treatment, first introduced in Oregon in the early 1990s, are based on discussions between doctors and patients who are frequently hospitalized or have advanced chronic illness. After determining the type of care and quality of life that the patient desires, the provider notes those preferences in a standardized medical order. The brightly colored forms are placed at the top of your medical record, where it's the responsibility of health care providers to ensure they're accessible and up to date.
More than a dozen states have established POLST systems, and roughly 25 more are developing programs. To find out if the protocol has been established in your state, go to www.polst.org. A living will is "just what you hope your doctor will do," AARP's Hurme says, but "an order is an order."
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