We want to find out about what we can do if and when the time comes to, "Do the right thing" at my MIL's end of life care? We have POA, but need to know more about the other legal ad ons to that! Such as; Advanced Directives, Durable POA, etc.? We do not know what they mean or about about all the Legal aspects of this? And, we do not have the funds to go see a Lawyer every time we want answers to our questions.Is there somewhere we can go to find some of these questions out besides the "Library" or online? You have to pay a fee online to get an answer to your questions. We are, unfortunately, limited by the financial aspect of our specific situation. If there is anyone here who can explain some of this, in a manor that is understandable and not condescending, we would be grateful....!! Thank you,..for any help here will be appreciated..!
It will be giving this referral a try. Hope this helps someday else!
madge1, I'm not too familiar with living wills, and when I was researching these documents in CA, I was led to believe that healthcare proxy/advance directive had replaced what used to be referred to as a "living will." I understand your mother's "living will" did not name your brother as her medical proxy -- but did she not name some other agent to carry out or advocate for her wishes in the event she was unable to do so for herself? I don't honestly know what happens if there's no named proxy or agent to carry out one's wishes ... that's definitely a question for a lawyer ... but if I had to guess, I'd suppose that anyone could produce the living will and argue with the hospital or medical establishment about acceptable/desired treatments based on what was in the document. If the document spells out your mother's wishes clearly, I'd assume (and hope) that the hospital/medical establishment would attempt to honor those wishes.
Generally, a person DOES list a proxy or first agent in a healthcare proxy or advance directive. I think it's not a bad idea to also appoint a "successor" proxy or agent in case the first proxy or agent is unable or unwilling to serve when the time comes.
And yes, one of the primary benefits to an advance directive-type document is that it allows you (the creator of the document) to bestow power to make decisions on your behalf to a person or persons whom you know (or believe) will actually honor your wishes, even if others of your loved ones disagree with them. If, for example, you felt strongly that you wouldn't want to be kept alive artificially on machines in a vegetative state, but you also knew that your son or daughter strongly disagreed with this point of view and believed that life should be prolonged as long as technologically feasible at any cost, you would probably select someone else -- perhaps a friend, sibling, or spouse -- to be your healthcare proxy. That person would then have the ability to make decisions about what treatments you would or would not get, even if your children tried to impose their wishes/beliefs on the situation instead. I use this example not because I assume this is what's happening in your family, but because it is often the shape that such struggles take.
I'd recommend seeking an informed opinion from a lawyer, but my GUESS would be that if your mother DID create a living will that clearly spells out what her wishes are for herself ... but did not specifically name a medical proxy ... any family member with a copy of that document could produce it for the hospital and argue for it to be followed. The terms of the document would be subject to interpretation, and different doctors/hospitals might come to different conclusions ... but if the document is very clear, then it is unlikely that her wishes would be ignored.
Again, this is just a guess on my part. Any lawyers out there?
There are websites online that I would trust, such as AARP and the ALZ organization. They can help you get familiar with the basics. Also take advantage of your local council on aging. If you end up needing a lawyer, at least he will not be able to bill you for educating you on the basics or for documents you CAN prepare yourself.
I was under the impression, the medical proxy was to make sure her wishes were granted in case a family member (for example me) tried to intervene. This I have heard, from a physician, happens often.
I was told basically to butt out. This is how my family deals with each other. I am just interested to know if without the medical proxy to insure her living will is honored, can a family member's wishes intervene with my mother's wishes.
I know all states are different but it was my understanding that the important of a medical proxy was to insure her wishes were carried out.
***POA***
A POA generally gives you the ability to handle a person's finances for them. It can be durable or non-durable. Durable means that the POA remains in force even if the person who grants it becomes incapacitated. With a non-durable POA, the POA becomes ineffective if the grantor becomes incapacitated.
A POA can be general or limited. A general POA allows your agent to do every act which may legally be done for you. A limited POA gives your agent the power to perform only specific, itemized tasks.
Finally, a durable POA may be set up to be a "springing" POA. A springing POA becomes effective only when the grantor becomes incapacitated, which generally requires the a doctor's certification of incapacity or incompetence. This certification may be difficult to obtain, even when the grantor is clearly (to people who know him or her) incompetent.
A non-springing POA becomes effective immediately upon being signed/notarized.
Unless a POA specifically spells out this power, it generally does not give the agent the power to "gift" the grantor's assets or property (for example, to take advantage of the IRS annual gifting-limit laws). If this is something a grantor wants to ensure continues to happen even in the event of his/her incapacity, he/she will need to include language in the POA that gives the agent this power. Keep in mind that ANY gifting done within five years of applying for Medicaid will be “counted” against the grantor (i.e., Medicaid will essentially not be granted until the money has been paid back, or the amount of time in a nursing home that this money WOULD have paid for has passed).
Note, too, that various financial firms (e.g., Charles Schwab, Fidelity investments, etc.) will not accept a general durable POA as sufficient to give you the ability to transact or make decisions about the grantor's accounts, but instead require you to use their own specific POA form. It is important to make a complete list of such accounts and holdings with your loved one while he/she is still able to provide this information, and to contact all such institutions directly to find out if they require signature/notarization of their own proprietary POA form. If so, a grantor who wants to give his/her agent the ability to transact/make decisions about such accounts should obtain the proprietary form and sign/notarize it while he/she still has legal capacity to do so.
Generally, it is better not to rely solely on a POA to give you the power to make medical decisions for the grantor, even if the POA includes language that seems to grant this power. For this purpose, hospitals and doctors generally expect to see a document that is specifically designed to give you this ability, as described next.
***Living Will/Advanced Directive/Healthcare Proxy/Medical POA***
The above terms are all generally used to refer to the same sort of document -- namely, one that gives a person the ability to spell out his/her wishes in terms of what sort of medical/life-sustaining treatment he or she does or does not want in the event of becoming incapacitated and unable to speak for him or herself. In such a document, for example, the grantor will specify whether he or she wishes to be given artificial nutrition if in a vegetative state. In the document, the grantor will also name an agent who will be empowered to make these decisions for the grantor in the event of the grantor's incapacity; in accepting the role of agent, the agent agrees to honor the wishes of the grantor to the best of his/her ability.
The specific term that is used to refer to this kind of document generally depends on what state you live in. But they are the same document, and you should only need one. If your loved one has already created an Advance Directive or a Healthcare Proxy that names you as his/her agent, you should not also need a "Medical POA."
These documents are generally intended to empower the agent to talk to medical professionals on behalf of the grantor, both about healthcare and billing issues, and to ensure that the medical establishment will accept the agent as the decision-making authority if the patient is unconscious and unable to "speak" for him or herself.
***POLST (or “MOLST,” “MOST,” or “POST”) form***
A POLST is a “Physician’s Order for Life-Sustaining Treatment” (or “Medical Orders for Life-Sustaining Treatment” (MOLST), or “Medical Orders on Scope of Treatment” (MOST), or “Physician’s Orders on Scope of Treatment” (POST).
This initiative began in Oregon and is currently in 21 states. It is a form, usually brightly colored and taped to a person’s refrigerator, that seeks to direct specific medical orders to be followed by health care workers (such as emergency responders) during a medical crisis. It covers some of the same information that is covered in an Advance Directive ... but it does so in a highly portable and concise way. It is most often created when a person is terminally ill and prognosis is that death will occur within a year ... but it can and should be created well before then in the case of a patient with a progressive dementia who may not have the capacity to make his/her wishes known when he/she is within a year of dying.
In a medical crisis (such as a heart attack), when EMTs come to your house, they do not have time to sift through a multi-page Advance Directive or healthcare proxy to determine what the patient’s wishes might be in terms of wanting or not wanting life-sustaining treatment. They will ALWAYS proceed to resuscitate, even if this is not what the patient would have wanted (as spelled out in an Advance Directive). The purpose of the POLST is to provide a single, immediately recognizable form that can be used by doctors and all first responders (fire department, paramedics, police, emergency rooms, hospitals, and nursing homes) to determine what the patient’s wishes are.
A POLST must be filled out and signed by both the patient and his/her primary care provider (physician, nurse practitioner, etc.). This ensures that the physician has talked to the patient about what he or she wants.
From Wikipedia: “POLST forms record several treatment decisions common to seriously ill patients: cardiopulmonary resuscitation; the level of medical intervention desired in the event of an emergency (comfort only, limited treatment, or full treatment); and the use of artificial nutrition and hydration. Some states address additional interventions such as antibiotics and mechanical ventilation. As technology and treatment options change, POLST forms will also continue to evolve.”
***Living Trust***
A living trust is designed to allow the trustmaker to decide how property/assets will be distributed upon his/her death. The purpose of a living trust is generally to avoid the expensive and time-consuming "probate" process that occurs if a person dies without a formal estate plan.
A living trust may be "revocable" -- i.e., one that the trustmaker may revoke or modify later if he/she changes his/her mind -- or "irrevocable," meaning that it cannot be changed once it is created.
Once a living trust has been created, it must be "funded" ... which essentially means that all property to be included in the trust (real estate, bank accounts, etc.) must be retitled in the name of the trust. (Generally, personal property like the contents of a house can be included in the trust simply by including it in a schedule attached to the trust ... but items of significant expense or import, such as fine artwork, should be specifically named.) If property is not included in the trust, the trust may not protect against the need for an estate to be probated. A common mistake is to go to the time and expense of creating a trust, but then fail to "fund" it.
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I think this is a general list of useful documents to have in place.
Some of these, you can download from the Internet. Be aware that the risk of downloading forms instead of having them prepared by an attorney is that the form you use may be very “generic,” and may not include some specific power you haven’t thought to check for.
This being said, some legal form sites like RocketLawyer will give you a free trial period that allows you to prepare and download some of these forms for your state; if you are efficient, you should be able to do this for the forms you want within your free trial period. You will need to cancel your membership by the end of the free trial period in order not to have the monthly fee be charged to your credit card.
We used downloadable forms for the general durable POA and Advance Directive for my father. These forms have been accepted everywhere we’ve had to submit them. We did have to fill out/notarize proprietary POA forms for some of his banking institutions.
We used an attorney to set up living trusts.
The internet is full of information, but that doesn't make it accurate. States have vary in their laws and having the assistance of an attorney that specializes in elder care can save you time and frustration.
I am living proof of the stupidity of using an attorney that had no idea what they were doing in terms of eldercare and I have not yet recovered it from it.
My sister's hired just an attorney and he did not charge much, but his knowledge was poor. He was suppose to do a financial and medical POA, well he did just a POA. Well when my mom was in the hospital we found out through the social worker that the POA my sister had was good for finances and I am not sure it is good for that because it doesn't specify that. In fact it does not specify much. We did the medical POA through the social worker and it was filed with the court. So we know that one works now.
The fact is you need someone that specializes in the elderly so that you can protect yourself and the loved one you are caring for. I do a lot of research via the internet, but with state laws the way they are you need the expertise of someone that knows all of the details of medicare, medicaid and elderly problems.
So make sure you get the documents right and double check to see if they have to be filed in court.
Your best bet is to sit down with an attorney to make sure you have all the right documents. Make sure it is a good attorney that knows what they are doing.
Just make sure it is an attorney that knows what he or she is doing. My sisters picked a poor attorney, find one that specializes in elder care.