This article has more of a personal touch because the subject is something that I have been dealing with recently: care of an elderly relative in failing health, and the things that can be done to make the process bearable. Apart from the multitude of medical issues that can arise, there are legal issues which can be addressed in advance, before an elderly loved one needs intensive medical care and personal help. The durable power of attorney, living will, and last will and testament are three central documents which should be considered at an early time when loved ones are healthy enough to both participate and provide guidance as to their intentions and wishes.
Take my word for it. You will not have the time or the emotional energy to address these serious legal considerations once an illness strikes and a loved one requires constant daily care and attention. In addition, all three documents can address in advance issues that will eventually occupy center stage in your efforts to properly manage your loved one’s affairs.
Of the three documents mentioned, the durable power of attorney may be the most important in the near term, since it allows the agent appointed by the elderly person the ability to take virtually any action on their behalf should they become incapacitated or otherwise unable to discharge their personal and financial affairs. A properly appointed agent can act without the need of going to court to be appointed, with its inevitable delays and cost. Since the ability to act promptly may be crucial, I cannot overstate the importance of having a properly drafted durable power of attorney in place. Hospitals will ask for it. So will banks, brokerage houses, and insurance companies. Social Security and Medicare officials will not discuss your loved one’s status without a valid power of attorney.
Should a loved one become mentally incapacitated, the durable power of attorney becomes irrevocable and the named agent is thereafter essentially permanent. Prior to incapacity the power of attorney is always subject to revocation by the grantor.
Of less immediate importance, but for obvious reasons, the last will and testament should also be prepared at a time when the testator is lucid and can cooperate and assist in conveying their intentions. Should a serious illness strike, it may be impossible to create a valid will if the testator is not fully cognizant of his or her affairs and legally competent to understand and execute the will. Without a valid will, your loved one’s assets will pass under the state’s intestacy laws – perhaps to persons other than those intended to receive them.
Finally, the living will, also known as an advance medical directive, allows a loved one to convey their intentions in advance regarding life-sustaining medical treatment, especially drastic medical treatment having little or no likelihood to improve the health of the patient, merely prolonging their existence, and probably his or her suffering. The living will also allows the appointment of a surrogate who is granted the power to make such medical decisions on behalf of the patient as and when they must be made.
I am happy to say that all of these precautions were in place when I found myself faced with the more important tasks of caring for an elderly loved one, eliminating many of the problems and much of the “red tape” which might otherwise have prevented me from devoting my complete attention to the most important task: proper care and treatment. If this article persuades even one reader to address these difficult issues now, it will have been worth the effort.
— Kevin Palmer