Alzheimer’s Association Support Group
May 16, 2005
Notes from “Legal Issues for Persons and Families Dealing with Alzheimer’s Disease”
Guest Speaker: Mark
Denniston, Stuyvesant Benton Law Firm,
Living Wills and Advanced Medical Directives are very broad documents that allow a person to identify their preferences for the degree of medical care and medical interventions to be employed when the person can no longer speak for himself or herself. They can be written as broadly or specifically as the person chooses. There are a number of forms that are available on-line or in office supply forms, but these should be used with caution as state laws vary from state to state.
It is your responsibility to let your medical provider(s) know that you have a living will and advance directives. There is a place on your driver’s license for notice to the emergency workers that you have advance directives. It is also a good idea to make sure your physician and hospital of choice have a copy of the document in your medical chart, and that additional copies are in easy possession and access of your family members. It is NOT a good idea to store it in a lock box at the bank.
To prepare a living will in
A Power of Health Care Attorney is a document that should be completed by a lawyer with the person assigning responsibility. It designates a person to make decisions for you. It needs to be witnessed or notarized. A person must be mentally competent to complete it. A test of competency means that the person is aware of their surroundings and understands what they are signing. The person who is designated as Power of Health Care Attorney needs to consent to this designation. This document does not have to be completed by an attorney, but it is a good idea. Different laws apply in different states, and attorneys can help a family sort out possible pitfalls. A power of health care attorney lasts only until the time of death of the person granting the power of attorney, and it is limited just to health care decisions.
A General Power of Attorney is another document. It is for financial information and property matters. This is another document that should not be kept in a lock box or a safe deposit box. The document allows the designated person to manage all financial and property matters on the behalf of the person granting the general power of attorney. It needs to be properly executed, and it needs to be notarized and “sealed” (embossed with a seal or an ink stamp). Again it is a good idea to have this document prepared by a competent attorney as there are many pitfalls or complications that could occur if not done properly or with adequate forethought. A general power of attorney also lasts only until the time of death of the person granting the power of attorney. It does not deal with any matters of distribution of the estate after the person’s death. The executor of the estate deals with the financial matters after the person’s death.
Preservation of Assets: Any financial instruments or assets transferred to the individual’s spouse prior to 5 years before filing a Medicaid claim, allows you to preserve those assets. Anything transferred less than 5 years prior to filing a claim, can be reclaimed by Medicaid to reimburse the provider. A family facing Alzheimer’s disease really needs to talk with a financial planner or estate attorney to work out the details of preserving assets in order to avoid pitfalls in the future.
Trusts are a type of asset preservation solution that is a combination of several options. The Trust owns the property and assets rather than the individual. The trust is a legal entity, like a corporation. Trustees make the decisions about what is done with the property. It is a method that can be used to avoid probate. You can avoid Medicaid through this, but it needs to be done very carefully, and it needs to be done by an attorney who knows and understands the Medicaid rules and regulations, so the Trust complies with all the applicable Medicaid rules and regulations.
Plan Ahead: It is important that you plan ahead of need and have your Living Will, Advance Medical Directives, Power of Health Care Attorney, and Will prepared now, while you are still competent and able. You need to take care of these documents for yourself, and encourage your family members to take care of theirs too. Check with an attorney to determine if it is still possible to prepare documents for your family member with Alzheimer’s Disease or other form of dementia.
Costs for
preparing a Health Care or Financial Power of Attorney would be approximately $50
to $100 per document. You should be able
to get a general Will done for about $150.
The price of preparing a Trust would me a bit more expensive. Check prices with several attorneys and compare
their costs and experience. Ask the
attorney if he or she offers free consultation.
Remember that you are not only getting the preparation of the document
for the price, the attorney should also be teaching you about the documents and
the procedures as well. You might check
with the Legal Clinic at
Subsequent to Mark Denniston’s presentation, and article appeared in the May 2005 AARP Bulletin, page 15, “Is a living will enough?” This article is reprinted below:
“After Terri Schiavo, American s increasingly want to know how to draw up advance directives – instructions for their care if they become incapacitated and cannot make medical decisions for themselves.
“‘If you are going to choose one thing to do, it should in
most cases be a health care power of attorney,’ says James Bernat, M.D. a
neurologist and chairman of the ethics program at the
“Living wills are another kind of advance directive, but many experts say they should be used only in conjunction with a health care power of attorney. Living wills often are ineffective because they are too vague or they try to cover every possible medical contingency. Another drawback – many people fail to give their living wills to their doctors.
“Each state has legal guidelines for advance directives. To learn more go to:
Leah Glasheen, author