Legal Issues: Advance Directives, Powers of Attorney, Guardianship, & Other Issues

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Learning ObjectivesParticipants will learn about:

• The basics of an estate plan:

• Powers of Attorney, Wills, and Advance Directives

• DNR (Do Not Resuscitate)

• Trusts & Guardianship

• Legal Record KeepingThis program provides general information and is not intended to be legal or

financial advice. Contact the local area agency on aging for assistance. Staff of Social Security Administration, Centers for Medicare and Medicaid Services,

and attorneys should be consulted about individual situations, as needed.

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We value your opinion. Please ask your instructor for an evaluation form at the close of this session.

Sooner or LaterYou have to talk about it!

Plan ahead and don’t wait for a family crisis or medical emergency.

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Matters to Consider and Discuss with Family Members or with an Attorney

• Financial Power of Attorney

• Medical Power of Attorney

• Directive to Physician “Living Will”

• Guardianship

• Designation of Guardian

• Out of Hospital Do Not Resuscitate (DNR)

• Wills

• Trusts

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Financial Power of Attorney (POA)

• Person, known as the “principal” appoints an “agent' to carry out financial and other activities, as instructed by the principal

–Often the person designated is the spouse but can also be children, other family members, or others

–It is advisable to name a primary agent and an alternate agent

• You may choose whether the POA becomes effective immediately or only in the event of illness/disability

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Financial Power of Attorney (POA)

• It should have language indicating that it is “durable” (remains in effect even after the person is legally incapacitated)

• Power of Attorney may be revoked

• The Power of Attorney must be notarized; it does not need to be witnessed

• To obtain the statutory form go online–www.texasprobate.com/forms/poa.htm

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Medical Power of Attorney (MPOA)

• Allows you to designate an “agent” to make health care decisions when you are unable to make those decisions for yourself.

• Broader in scope than a “Living Will”

• Allows your agent to make ALL medical decisions

• May give specific instructions to provide or withhold certain care or treatment

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Medical Power of Attorney (MPOA)

• Document must have two witnesses; it is not notarized

• At least one of the witnesses cannot be

• a relative, anyone that would inherit or take under the creator’s will, the attending physician, anyone that works for the attending physician, or most employees of a health care facility

• Find Statutory form online at

–www.texasprobate.com/forms/medpoa.htm

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Directive to Physician and Family or Surrogate, “Living Will”

• An advance directive to the physician to withhold life sustaining procedures in the cases of irreversible conditions or terminal illness – the person is not likely to survive

• Allows the individual control over end of life decisions

• Document must be signed in the presence of two witnesses (“declarant”); no Notary is required

• Person can revoke at any time by stating it is no longer in effect

80% of people surveyed do not want to be kept alive on machines

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Directive to Physician and Family or Surrogate, “Living Will”

• The limitations on witnesses are the same as for the Medical Power of Attorney

• The form is available online at• www.texasprobate.com/forms/dtp.htm

• Can be specific and tell the physician specific kinds of care an individual wants if the person becomes unable to make medical decisions

• Laws about advance directives are different in each state

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Conditions Under Which Directive to Physician and Family or Surrogate is Often Used

• This directive is used only when the patient is either terminal or has an irreversible condition. Examples of situations that may fit in one of these categories are as follows:

• People who have cancer that has spread• Chronic kidney failure• When a lot of help is needed with daily activities• Severe infections such as pneumonia that require

hospitalization

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Out of HospitalDo Not Resuscitate Order (DNR)

• Type of advance directive that instructs paramedics and other healthcare professionals not to perform cardiopulmonary resuscitation (CPR) or other life support measures (except for comfort)

• An out of hospital DNR must have two witnesses and must be signed by the person’s physician

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Out of HospitalDo Not Resuscitate Order (DNR)

• Completed form must be carried or the person must have a special identification bracelet

• Some people are now having “DNR” as a tattoo on the chest

• A DNR order becomes part of the medical chart

• A standard form is available from hospitals or online from the Texas Department of Health at

• http://www.dshs.state.tx.us/emstraumasystems/dnr.shtm

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Guardianship

You may need a court-appointed guardian when you

• Lack the ability to make personal or financial decisions

• No less restrictive alternative is available (No estate plan!)

The Texas Legal Services Center http://www.tlsc.org/ Legal Hotline and

most aging services professionals emphasize that if people have the

appropriate legal documents in place ahead of time they can avoid

guardianship in most cases

For Assistance

Call local area agency on aging at 2-1-1

Call Call Legal Hotline for Older Texans 1-800-622-2520

See publication “Alternatives to Guardianship” online in pdf format

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When Does Someone Need a Guardian?

• A Guardian is necessary when a person is “incapacitated” and the needs of that person cannot be taken care of in another way

• A person is incapacitated when he or she suffers from a physical or mental condition that causes that person to be substantially unable to manage his or her financial affairs, or is substantially unable to provide for his or her food, clothing or shelter

• Two types of guardianship: guardian of the person and guardian of the estate

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When Does Someone Need a Guardian?

• Some indications that a person may need a guardian include:–Severe memory loss

–Severe cognitive impairment

–Extreme confusion

–Impaired judgment

–Hallucinations or paranoia

• Vulnerable to abuse or self-neglect

• Lack necessary medical care

• Living in unsanitary housing or conditions

• Uncertainty handling one's financial affairs

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Guardianship as a Last Resort ?

• Costly Procedure

• Will involve at least two attorneys (one for the Applicant and one for the proposed Ward)

• If there is an estate, a corporate surety bond will also be required

• Very limited authority. No action can be taken without court approval

• Annual maintenance. Must file Annual Account and pay annual bond premium

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Designation of Guardian

• Allows you to designate the person you want to serve as your Court-appointed Guardian, if necessary

• Protects your agent under the power of attorney

• Requires two witnesses and a notary (self-proving affidavit)

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What is Probate?

• Court process to validate will or determine heirship• Will proponent required to establish validity• If no will, Court will determine heirs at law

• When is Probate required?• If assets are not accessible, or cannot be transferred to

proper parties by other means• If debts are owed to creditors

• May require executor or administrator • Will require posting of bond and supervision by court, unless

independent administration is authorized

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What is Probate?

• Executor not required if no debts at the time of death and will clearly indicates the disposition of all assets

• Alternatives to Probate:• Joint account with right of survivorship• Beneficiary Designation• Gift of Remainder Interest• Living Trust

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Without a Will, “Intestate”

• Without a will, property passes in accordance with state law, and not necessarily the way one would choose

• If married, passes to spouse, unless…

• With second marriages, Decedent’s property passes to the children

• If unmarried, passes to Decedent’s children, or their descendants, or to Decedent’s parents, or siblings, or their descendants

• Decedent may have separate or community property

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Will

• A will is a legal document that ensures a person’s assets be distributed the way he or she wants

• Designates an Independent Executor or Administrator who will handle the administration of the estate

• Needs to be effective for the state in which the person lives

• “Holographic” is a hand written will

Parents, spouse, and other older adults say:

“I want you to respect my wishes”22

Important Elements of a Will

• Must be signed by the person making the will, the “testator”

• The testator must be of sound mind (capable of reasoning and making decisions)

• Must be witnessed by two persons who are at least age fourteen and are both present when the will is signed

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Important Elements of a Will

• Should be “self-proved” by having an attached self-proving affidavit signed by the testator and the witnesses and be notarized. Notarizing the will avoids the witnesses having to appear in court to “prove up” the will

• Should provide for “independent administration

• Should waive bond requirement

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Duties of Executor

• The will should name an Executor

• The duties of an Executor are:• Gather the financial assets, personal possessions, and

real estate that belonged to the testator• Inventory financial assets, personal possessions, and

real estate• Pay appropriate debts• Distribute remaining assets to the beneficiaries named in

the will

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Legal Record Keeping

• Keep original of the will in a fire-proof location, such as a bank safe deposit box or fire proof safe

• Keep a copy of the will and originals of all other documents in a secure place at home where family members can access them in emergencies during non-business hours

• A will or advance directive left on a computer is not legal

• The individual can revoke advance directives and other legal documents at any time

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Trusts

A legal document that designates a person or entity (“Trustee”) to hold legal title to property for the benefit of someone else (“Beneficiary”)

• Can be revocable or irrevocable

• Covers distribution of income and principal

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Trusts

• Trust beneficiaries consist of

–An income beneficiary (a person entitled to receive distributions for the Trust during his or her lifetime) or

–A remainder beneficiary (the person who receives the Trust assets when the Trust terminates)

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Types of Trusts

• Testamentary Trust • A trust created under a person’s will• Usually for benefit of minor children or “wayward” child

• “Inter vivos” or Living Trust • A trust created by someone during his or her

lifetime; usually revocable

• The creator of the trust is usually the initial trustee and primary beneficiary

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Living Trusts

• Successor trustee is ultimate beneficiary

• Useful for managing assets of incapacitated individuals

• The trust, not the individual, owns the assets, therefore assets are not subject to probate

• May avoid claim for Medicaid reimbursement against homestead

• Should also have a “pour over” will, which provides all assets pass under the terms of the living trust.

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Resources For CaregiversCall:• 2-1-1 throughout Texas Provides health and human service information

for people of all ages

• 1-800-252-9240 to get connected with the Texas Area Agency on Aging for your community

• 1-800-677-1116 Elder Care Locator to find help in another part of the state or another state

Online:• www.benefitscheckup.org - Helps determine what benefit programs are

available

To find this and other information quickly, go online to: www.familycaregiversonline.net

You will find online education, resources, links, FAQs 31

What Assistance is Available through the Area Agency on Aging (AAA)?

•Information and Referral

•Caregiver Education and Training

•Caregiver Respite

•Caregiver Support Coordination

•Benefits Counseling, including assistance with issues in this module

•Ombudsman (advocacy for those who live in a nursing home or assisted living facilities)

•Home Delivered Meals

•Congregate Meals

Services for persons age 60 and olderCaregiver Services

Note: Not all services are available in all counties. Call the local area agency on aging for information about a specific community. 

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Written by Zanda Hilger, M Ed, LPC, Elder Family Caregiver Education, Area Agency on Aging, as revised in 2008 with assistance from

• Steve Katten & Gary Westenhover, Elder Law AttorneysRevised in 2009 by Zanda Hilger and Betty PurkeyElder Law Handbook, 3rd Edition, 2004, Senior Citizens Liaison Committee,

Tarrant County Bar Association.Online and print information from Centers for Medicare Services (CMS)Permission is granted to duplicate any and all parts of this program to use in

education programs supporting family members caring for eldersThis program is one module of a comprehensive caregiver education

program provided by the area agency on aging Go to www.familycaregiversonline.net for more information about this and • other training programs,• internet links,• frequently asked caregiver questions,• legal forms,• phone numbers, and more

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