This post is courtesy of Adriane Berg. It’s information we all need to know.
When a relative of one of Lisa Moren’s friends passed away, the family had no clue as to her burial or other wishes. That is typical of our ability to deny our death up to and, for our loved ones, after the end. Although taking care of business can seem morbid, it is only so for a few minutes, and then you have set the stage for less anxiety, guilt, and aggravation for your loved ones.
However, good and available documents that determine death wishes are just a fraction of the documents that will make a difference in your life. It’s the living documents that affect you every day for as long as you live that you also want to address.
But before you read about these important documents, let’s answer the question of where they should be kept. There are a few choices, all of them good.
· Documents that have a trustee, power of attorney, or other fiduciary can be kept with that fiduciary. The good part is they know where it is. The bad part is that they know where it is. So if you want to change their name to someone else’s, you need to get their cooperation.
· You can choose to keep documents with your lawyer. Always a good idea if you have one. The problem is the efficiency of the office. If a document, especially a medical directive document, takes time to get from the office, there could be a problem.
· My favorite, favorite place to store documents is the REFRIGERATOR. Yes, you read that correctly. I like to use a freezer bag or one of those bags that preserves fruit. Tell all the people that need to know where the documents are “hidden.” Why the frig? The frig is safe; it usually stays with the home, so no one throws it out; the frig gets cleaned out, so people find the documents.
· Last but not least is Life Ledger, one of the Longevity Club’s long-time affiliates. The Longevity Club is a free club. For those bent on having a great older age, listen to longevity club radio. You can join at www.LongevityClubOnLine.com. For the club’s special discount on Life Ledger, click here. The Platinum Life Ledger membership includes a comprehensive step-by-step process to get completely organized and prepared to help assist with all aspects of an elder’s life, such as medical, finance, legal, insurance, custom links, multiple document storage, functional assessment, and much more at a cost of $9.95 a month.
And now for the important documents:
· Powers of Attorney that appoint surrogates to carry out your financial wishes.
· Healthcare Powers of Attorney or Healthcare Proxies that appoint a surrogate to carry out your healthcare wishes.
· Living Wills and Do Not Resuscitate Orders are also used in many states to express your wishes directly.
Without these documents, there is the danger that the court will appoint a conservator or guardian to take over your money and healthcare decisions at considerable cost and often heartbreak for you and your family, or that doctors, institutions, or the legislature will impose their decisions at critical times.
You should be aware that these crucial documents can also be a danger to our health or wealth if they do not adequately and clearly express your desires. Here are the pitfalls and how to avoid them.
The document is ineffective just when you need it.
A Power of Attorney is a document that appoints an agent to act as your substitute. It authorizes your agent to access and spend your money, to buy, sell, or gift your investments and personal and real property, to sign your name to other documents, cash checks, file your taxes, and do a host of other financially related activities. Most people sign these Powers of Attorney if they become incapacitated and cannot act for themselves. But a traditional Power of Attorney is extinguished if you become incapacitated. It strips your surrogate of the power to act, just when you need a substitute to act for you.
The fix: Create a “durable” Power of Attorney, which is effective (unless specifically revoked by you) no matter what your mental or physical condition is.
Durable powers take effect immediately upon signing and continue in force whether or not you have capacity. The document must specifically state that it is durable and remains in effect upon your incapacity.
The document gives control to others too soon.
Since a Power of Attorney (durable or standard) takes effect immediately upon signing, you are giving over power while your still able to handle your own affairs and make your own decisions.
The fix: The “springing” Power of Attorney springs to life when two physicians certify that you have incapacity, whether temporary or permanent, that prevents you from handling your affairs. Your surrogate can act for you only if and when you are incapacitated, and you take back the helm on regaining capacity.
Idea for entrepreneurs: Create a separate springing Business Power of Attorney. While most Powers of Attorney carefully spell out when they take effect, rarely do they spell out how to regain control. A well-thought-out Business Power of Attorney can be flexible enough to allow you to keep control over your business for as long as possible, even as competency waxes and wanes.
The directions are incomplete or just plain wrong.
Many power documents are one-size-fits-all, computer-generated forms that don’t take account of your needs or wishes.
The fix: The document should make sure that your medical bills are paid, your insurance premiums are met, your mortgage is satisfied, your taxes are paid, and your affairs are managed.
Powers can be “general,” affording the power to the surrogate to do anything you can legally do, or “limited,” specifying one or several distinct activities. Significant to our longevity, both the durable and springing Powers of Attorney can establish your wishes regarding spending money for home healthcare. For example, it is understood that it is my overriding wish to stay in my home in the event of an incapacity. Therefore, I authorize my agent to make expenditures for home renovations, at-home medical equipment, medication management, mobility devices, motion sensors, the services of a geriatric care manager, and any other expenditures to create a state-of-the-art environment.
Idea for long-term care: Give your agent sufficient power to plan for government benefits that cover long-term healthcare costs. Strategies include gifting assets or placing them in a trust. Since most people name their closest heirs as their surrogate, there may be a conflict of interest, so consider a separate gifting Power of Attorney, naming as surrogate a person who will not be the recipient of the gift.
The healthcare directive is too vague.
Without clear healthcare directives, decisions regarding your medical care, custodial care, and even your end-of-life planning will be out of your hands. The quality of your final years, days, and moments may have very little resemblance to what you would have wanted.
The fix: Say it like you want it. Specify your preferences regarding your care during a long-term or chronic illness. Coordinate your directives with your durable or springing Power of Attorney. Make sure that the agent handling your money and arranging for the payment of your desired care is not in conflict with your healthcare agent. One easy fix is to make them the same person. If you have the clause in your Power of Attorney for “aging in place” in your home, make sure that a similar clause exists in your healthcare power.
Pain treatment: You can add a clause to give your surrogate the power to consent to and arrange for such things as the administration of pain-relieving drugs of any kind or other surgical or medical procedures calculated to relieve pain, including unconventional pain-relief therapies that your agent believes may be helpful to you, even though such drugs or procedures may lead to permanent physical damage, addiction, or even hasten the moment of (but not intentionally cause) your death.
Idea for family surrogates: Whether you opt for discontinuing life support in the event that physicians feel there is no hope or for aggressive treatment, such as continued machine assistance, heroic surgeries, or repeated defibrillations, make sure that your agent (usually a child or your spouse) understands your desires and is on your wavelength. The American Bar Association, www.aba.net, and the National Academy of Elder Law Attorneys, www.naela.com, have helpful material on holding a conversation with the family on end-of-life preferences.
Your surrogate will reinterpret or ignore your wishes.
There are legal and criminal sanctions for surrogates who ignore your wishes deliberately or self-deal with your money. But the more frequent problem is the honest fiduciary, including a professional trustee, concerned with liability to your heirs if they spend large sums on your healthcare.
The fix: One way to handle this is to specifically relieve your trustee or other surrogate of liability to your heirs if they spend too freely on your healthcare as long as the decisions are in accordance with your expressed wishes. Such a clause could look like this: My Trustee and my Trustee’s estate, heirs, successors, and assigns are hereby released and forever discharged by me, my estate, my heirs, successors, and assigns from all liability and from all claims or demands of all kinds arising out of the acts, except for willful misconduct or gross negligence, needed to carry out my wishes as expressed in clause (specify the relevant clause in your trust) of this Trust.
Adriane Berg is a keynote speaker and CEO of Generation Bold, a business consulting firm helping companies and not-for-profits reach the boomer and senior generations, and the author of “How Not to Go Broke at 102: Achieving Everlasting Wealth,” Wiley 2008 (for information see www.GenerationBold.com). Before founding Generation Bold, Ms. Berg was an elder law attorney and an original founder of the National Academy of Elder Law Attorneys.
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