Aging: What are the Most Important Legal Documents?

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Guest:  Dennis Christenson – Elder Law Attorney

Host:  Sally Smith - Author/Resource literature on age-related disease and healthy aging


Sally Smith:  Welcome to Age to Age.  I’m Sally Smith.  Let’s talk.  Today, we have with us Dennis Christenson.  He is an elder law attorney.  He also has biweekly talk show called Senior Focus, Saturday mornings from 9:00 AM to 10:00 AM, on WTMA, dealing with issues to do with the elderly.  We are very interested in what you have to say today, Dennis, because we want to ask you, what legal documents are ideal for a person to have in place, especially an older person, before they lose their sharpness of mind?


Dennis Christenson:  Well, the most important thing is, as soon as you suspect yourself or others starting to lose some of your cognitive skills and have trouble remembering things, you need to go, immediately, to a lawyer to get the appropriate legal documents.  Because if you delay, by the time you go to the doctor, you may no longer have the legal capacity to sign any documents.  And so, this is one of those things that you don’t procrastinate on.  You need to go see a lawyer immediately. 


The type of documents that you need, one document that most people know about is a will.  A will is a document that provides for what happens to your assets at your death.  You get to name who you’d like to be the personal representative to be in charge of handling your estate after your death.  When you have a will, it is a ticket to probate.  You are going to go through probate if you have any assets that are in just your name.  But this is the way that you can give the assets to people that you want to receive them.  If you don’t have a will, then the State draws a will for you, and it may not provide for the assets to go to the people that you want.


A second document, for those people who are interested in avoiding probate, is a trust.  And the biggest difference between a trust and a will is that, although both provide for how your assets are to be distributed at your death, a trust provides for how your assets are to be taken care of, and how your assets are to be managed during your lifetime.  If you had a stroke or a heart attack and could no longer manage your assets, the trust is there to manage for you during the remainder of your life.  Then, at your death, the trust says where those assets are going to go. 


When you have a will, a will does not take effect until your death, so if anything happens during your lifetime, the will stays in its folder, you know, in your safety deposit box and has no legal effect.  So, the documents that you use for transferring your assets at your death are either a will or a trust. 


Another document that you need to consider having, which is only operational during your lifetime, is a financial, or durable, power of attorney.  This is a document that you sign, and you indicate in this document who you’d like to have the authority to sign your name in the event that you’re no longer able to do it for yourself.  So, for example, you’re sick and you can’t sign your name anymore because maybe you have Alzheimer’s.  This authorizes someone to sign for you, to make sure your bills are paid and all of your obligations are taken care of.  That document continues from the time that you sign it until your death.  At your death, the person, the agent, who has that document can no longer sign anything for you.  So, that’s a document to take care of your financial matters during your lifetime. 


The next document is what we call a healthcare power of attorney.  That is a document that allows someone that you name to make medical decisions for you if you can no longer make them for yourself.  So, as long as you’re able to make medical decisions, the doctors are only going to ask you, and not the person you’ve named on the healthcare power attorney.  However, if you’re not able to make medical decisions, the person that you’ve named can make medical decisions for you, provided that you can’t make them for yourself.  Now, that determination is made by two doctors.  It’s not made by the agent.  It’s not made by your friends.  It’s made by the doctors who are treating you.  As part of that document, you can also indicate whether or not you want to be an organ donor, whether you want to be kept alive by machines, if you become terminally ill or permanently unconscious with no chance of getting any better, or whether you want a feeding tube. 


These particular questions are initialed by you.  So, that assists the agent you named in making decisions that would be consistent with what you want, and to avoid ending up in a situation like Terri Schiavo, down in Florida, a number of years ago, where she had no documents, no one knew what she wanted.  In this case, you initial what you want, then your agents make it much easier to follow.


There’s another legal document called a living will.  A living will is a document that you sign and indicate whether or not you want to be kept alive by artificial means in the event that you ever become terminally ill or permanently unconscious with no chance of ever getting any better.  Now, you might think it sounds very similar to a healthcare power of attorney.  The biggest difference between the two is that, with a healthcare power of attorney, it involves not only the end-of-life decisions of a living will, but any medical decisions.  So, for example, if you’re in a car wreck and are unconscious, and you hurt your leg, and it’s not a life-or-death situation, the living will would not authorize anyone to tell the doctors whether to have surgery, or amputate your leg.  All it deals with are the end-of-life decisions.


A healthcare power of attorney would allow the agent that you have chosen, if you can’t make the decision about how your leg is to be treated, to make that decision for you.  So, it’s a much broader document, and it gives the person that you name more authority to kind of make that ultimate decision, as compared to a living will.  So, although South Carolina allows both documents, predominantly the document that we recommend is the healthcare power of attorney.


There’s one other document that not many lawyers use, but we have, which is called a medical authorization.  Because of the HIPPA laws, as most of you are familiar, someone can’t just go up and talk to a doctor or look at your chart without permission from the person the chart belongs to.  What the medical authorization does is allow all the people that you name to talk to your doctors, but does not give them authority to make a medical decision.  For example, I’m from a family of five, my father was sick, I was the healthcare power of attorney, but my father was being treated in Michigan, and I had a brother and sister living in Michigan.  He’d come home from the doctor’s office, my sister would ask him what the doctor said, and my dad couldn’t always remember.  So when my sister, the first time, called and asked what they told my dad, she was told that they couldn’t tell her because she didn’t have any authorization.

Now, he didn’t want her to make decisions, but this [medical authorization] authorized her to talk to the doctors. 


Sally Smith:  Wow. 


Dennis Christenson:  And so, it’s a very important document if you want more than just your agent to have the authority to talk to your doctors or review your charts.  It does not give them the authority to make decisions, but it allows them to have that conversation.


Sally Smith:  What about a do-not-resuscitate, is that sort of covered in a living will, or is that a separate document?


Dennis Christenson:  Well, there’s one kind of a do-not-resuscitate that’s authorized by statute, and this becomes very important.  If you have a person who is at home, and is dying, and would like to die at home, and for some reason EMS is called, once they’re called, they, by state law, have to resuscitate you.  It doesn’t matter whether you have a living will or healthcare power of attorney, by law, they have to resuscitate you.  So, what that means is, if you have Alzheimer’s, or cancer, and you’re about to die, and you’re in the last hours of life, and some neighbor gets nervous and calls EMS, they’re going to come there and try to resuscitate you, take you to the hospital, and then they’ll honor your healthcare power of attorney.


But sometimes what happens is, once you start people on machines or intravenous feeding, it’s not so easy to get them off.  What this does is allow the EMS people to not to have to try to resuscitate you.  It can only be signed by a doctor, and it has to be ahead of time, and the doctor will only sign it if he determines that you’re terminally ill.  So, it’s not something that you can sign.  You have to ask your doctor to sign it.  So, if there’s someone in your family that would like to die at home, or is going to be very sick and taken care of at home, and you don’t want them to be resuscitated, you really need to talk to your doctor about getting a do-not-resuscitate order that only applies to the EMS people.


Now, some people think about DNRs in hospitals.  Those do-not-resuscitate orders are not a document that an ill person signs, but their power of attorney would have the authority to consent or ask to have that order placed in someone’s chart.


Sally Smith:  Wow.  I now see why they have a National Association of Elder Law Attorneys.  Because, actually, with the new privacy laws, and a lot of these legal issues, it’s getting harder to just have things unfold the way you think they will unfold.  It gets much more complicated than that.  Also, one thing I’ve heard that I thought was very interesting was what a gift doing these documents is for your children and the people that do have to take care of you later on.  Because, you’ve said what you want.  They can follow through.  They don’t have to say, do not resuscitate mother, she doesn’t want to be, it’s written right here in her healthcare directive.  So, I can see how it’s a very important thing in this changing society. 


Dennis Christenson:  It’s especially important if you’re going to be naming your children as your agents.  With spouses, they’ve generally been together long enough that they know what their partner wants.  But this is a topic that very seldom is discussed between children and parents.  If you name a child as your agent, they’re going to have to make a decision.  And if you haven’t done this, and they don’t know, they’re going to have to guess.  And no matter which way they guess, my experience has been, they second guess and they feel guilty about whether they made the right decision:  was this really what Mom wanted?  But when you initial it, you’re telling everybody what you want. 


The other reason that’s very important that you do this document, the healthcare power of attorney, is that, if you don’t have a document, in South Carolina, all of the children of that parent have to agree.  So, if you have four children, all four have to agree.  And if they don’t, the courts get involved.  There have been many a case that I’ve had where you have one child that’s been detached from the family, they get the call that Mom is sick, they fly into South Carolina, and they have to make the decision whether to take Mom off the machines or not.  The person that hasn’t seen Mom feels guilty, so they’ll insist that Mom stay alive until they deal with their guilt.  And, as a result, she gets far more medical treatment than she wanted, and it’s not the quality of life that she wanted.


Sally Smith:  Wow.  I tell you, in an imperfect world, there are still ways that these all could be improved.  But just to have this much on the table that you can direct and put in place ahead of time is really powerful as we see more and more people growing older and older and having quite a bit of infirmity toward the end. 


Dennis, thank you so much for illuminating us on these important documents to have.  Thank you so much.  And thanks to all our listeners too for joining us.  I hope you’ll listen to Dennis’ other podcasts as we deal with each of these documents individually.  Please give us your comments on our website.  This is Sally Smith, Age to Age, saying good-bye and wishing you courage and joy on your journey.  We are all connected.


If you enjoy listening to Sally Smith, you can buy her book, The Circle.  It’s the story of how she personally responded to her mother’s journey with Alzheimer’s disease.  It’s a wonderful gift of hope for anyone with a parent with dementia.  Just click on Sally Smith’s name under the Health Professionals tab on the Podcast home page.  All profits support research at the Center on Aging.  Thanks.

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