Aging: Necessary Legal Documents

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Transcript:

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.  We’re lucky, today, to have Dennis Christenson, our elder law attorney friend and counselor to talk to us about legal issues.  I’m learning a lot from Dennis.  One thing I’m learning is, who needs legal documents?  You do.  I do.  Everybody does.  And, when do you need them?  Now!  Tell us about the timing of legal documents.  Who needs these documents, at what age?

 

Dennis Christenson:  Unless you’re older than 18, these documents aren’t available for you to sign.  So, anyone over 18 needs to consider having these documents.  We have a lot of people who come in say, well, you know, I’m in pretty good health.  You know, I’ve got a wife and two kids, and everything is going good.  I’ll just wait until I get older; I really don’t need these documents.  Now, the thing that a lot of people don’t realize is that you don’t know when you might need them.  If, in fact, for the next twenty years, you never have a car accident, you never have an illness, and you never have any problems, you’re right, because as long as you’re healthy, and as long as you’re alive, you don’t need these documents.  But, none of us know when we’re going to have a health issue.

 

A number of years ago, I was walking across the street downtown, here in Charleston, and I got hit by a car.  I was thrown up on the hood of the car, and then I was thrown onto the concrete.  And, fortunately, although I had other injuries, I didn’t hit my head on the pavement.  That day, there were a couple of other people who were in the hospital who had been in accidents where they did strike their head.  They were then disabled.  They had brain injuries that kept them from doing anything.  So, at that minute, they needed that power of attorney.  They didn’t have any advance warning of what was to come, but with a snap of a finger, these people were no different than a person with advanced Alzheimer’s. 

 

So, if you know when you’re going to get sick, then you can wait until the minute before and sign.  But we never know when that’s going to be.  I mean, I was very lucky.  You know, had my head struck the pavement like these other people, I would be no different than a person who’d had a massive stroke.  So, since we can’t predict when those things might happen to us, we need to be proactive and take care of them immediately.  And you’re not just doing it for yourself.  You’re doing it for your spouse, your children, and your friends.  Because if you don’t have these documents, and something unexpected happens, then you’re in a position where the courts are going to be involved.  Fights will ensue.  It’s going to be much more expensive.  And you’re not going to be able to plan your life the way you want it.

 

You know, you planned when you were young to get through high school.  You planned your career.  You planned your retirement.  Well, why not plan in case you get sick and something happens to you?  So, of all the things that you can do in terms of planning, planning to have someone take over for you is probably the most important planning you can do for you and your family.  And to think that you can wait, just kind of throws fate in the wind, because you just don’t know.  You might not wake up some morning.  There are so many things that can happen, and you really need to do it now, and not wait until you start to get sick, because you may not have that opportunity.  And, once you lose the capacity to do it, from then on, someone other than yourself, and perhaps other than your family, will dictate how you family is taken care of, and how your life is taken care of.  So, it’s very important that you do it now.  People say, well, can I afford it?  You can’t afford not to.   

 

Sally Smith:  That’s the perfect answer, you can’t afford not to.

 

Dennis Christenson:  If you get involved in the court system, it’s going to cost thousands of dollars.  And for the rest of you life, someone is going to make the decisions, and you don’t even know if the decisions will be good ones.  What it costs for a will, or a trust, is a fraction of that cost, and now you have peace of mind that your affairs are taken care of. 

 

Sally Smith:  And, the way you want them to be.  That’s so huge, and worth quite a lot.  Let me ask you something.  At 18 years, you can sign after you turn 18 years old?

 

Dennis Christenson:  Yes.

 

Sally Smith:  Now, if I have a child that’s, say, in college, and is, maybe, 20, and something happens to him, would I, automatically, since he’s still my dependent, be his legal guardian, or would I need one of these documents?

 

Dennis Christenson:  Once a person becomes 18, your rights as a parent to make decisions for them end.  They are now an adult.  And if they’re not able to make decisions for themselves, they need the same guardianship, and conservatorship, set up as a person who is 85 years of age and has Alzheimer’s.  So, that’s why it’s important for children, sometimes, to have power of attorney, and healthcare power of attorney, especially if they’re from a family of divorce.  If their parents are divorced, how are the decisions going to be made between the two of them?  You can see, if the divorce was not an amicable one, the fights that could go on over that child.  That’s why I think that younger people, even, need to consider having power of attorney, medical power of attorney, and wills so that those issues can be resolved without having to risk problems in the future if something happens to them.  A 21-year-old can be in a motorcycle accident just like someone that’s 65.

 

Sally Smith:  That is just so pivotal to hear.  One thing that comes to mind in talking about how hard, or easy, it is once you have these documents in place is to change them.  That’s something that needs to be on people’s screen too.  I know a gentleman who divorced, married again, had a child, his only child, but when he died unexpectedly, he had never changed his will, and everything went to the divorced wife, which was ridiculous.  She had no issue.  There was no child to take care of.  I mean, he should have gone back in and changed this thing. 

 

How hard, or easy, is it once you’ve got them in place?  Say you’re 20 years old, you’re unmarried, you don’t have any issues yet, but you need these documents in case you are the one that, as you say, could have a major accident walking down the street today.  How complicated is it to revise?

 

Dennis Christenson:  Most of our clients, they’ll call and say that they want to make a change to their will.  Then we’ll ask them what kind of change they want to make.  Sometimes it’s just substituting one person for another.  Many times, they can call in with the information and they can come in at the next available appointment and sign a codicil, or change, so it’s very easy to do.  We had one client who called at 4:00 in the afternoon and wanted to change his documents, and he wanted it to be done by the next day.  We were able to make the change to his documents.  He was in the next day and changed his documents.  So, they’re very easy to do.

 

Sally Smith:  That’s good for people to know. 

 

Dennis Christenson:  With the healthcare power of attorney, all you have to do is tear it up.  If you don’t like it anymore, you just tear it up.

 

Sally Smith:  Now, there are originals, and there are copies.  If you tear up a copy, it doesn’t help you.  You have to tear up the original.

 

Dennis Christenson:  Right.  Now, the one thing, in terms of changing documents that people often don’t realize is that if you’re married and get divorced, and then you remarry, that will that you had before is no longer going to be valid.  So what will happen is that your spouse will be entitled to half of your assets, and your children will be entitled to the other half, which is not what people usually want.  So, anytime there’s a change in circumstances, a change in marital status, if you’ve been single and get married, if you don’t change your will, your spouse is going to get half of the assets.  Any change in your health or financial situation, you need talk to your lawyer to see if changes need to be made.  They’re very easy to do, and it can be very helpful to make sure that your intent is now carried forward.

 

Sally Smith:  So, it’s back to the same issue.  If you don’t say, my wife gets 20 percent, and my children get 80 percent, or however you want it, the state will make that decision for you.  They will give your wife half, and your children half.

 

Dennis Christenson:  In other words, there are particular laws about disinheriting wives, or spouses.  You really can’t disinherit your spouse, no matter how much you want to.  You can’t cut them out of your will unless you have a prenuptial agreement.  So, oftentimes, even though people think of prenuptial agreements in the context of divorces, they oftentimes are more important for people who are married who don’t want to, for whatever reason, give all of their assets, or a portion of their assets, to their spouse.  Under South Carolina law, a spouse is entitled to one third of your assets.  And if you try to cheat them out of that one third, they can upset your will and take a third.  But if you have a prenuptial agreement, you can make whatever arrangements you want.  And sometimes with older couples, you know, they both have their own assets from prior marriages, and they want their assets to go to their own children.  A prenuptial agreement will legally allow that to occur.

 

Sally Smith:  And, is it just prenuptial?  What if you’ve been married for a long time and you decide, well, we’ve got certain assets and we’re going to leave them a certain way, and, maybe, because I had a windfall of some largesse from somebody I haven’t thought up yet, I don’t need any money?  Can you make a change like that after you’ve already been married?

 

Dennis Christenson:  There’s not only the prenuptial agreement, there’s a marital agreement.  So, at any time in your marriage, you can create an agreement that allows you to give the assets that you have to whomever you want, and you don’t have to worry about the one third that you have to give to your spouse.  So, yes, you can do that.  And you don’t have to do it before you get married.  You can do it even after marriage, and we’ve had people do that.

 

Sally Smith:  Yeah.  Oh, gosh, so many interesting vehicles out there for every situation.  I love hearing about them.  Thank you so much, Dennis, for being with us.  You’re, really, so knowledgeable on so many fronts.  It’s fascinating.

 

Thanks to all our listeners, too, for joining us.  We welcome your suggestions and comments.  This is Sally Smith, Age to Age, saying good-bye and wishing you courage and joy on your own 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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