I have been diagnosed with dementia and want to get my affairs in order. I have a new will, but I did a power of attorney and living will in 1998 should they be updated?
Yes, you need to have your older documents looked at by an elder law attorney as the law and your planning needs have changed. Diminished mental capacity can occur at any age and for any number of reasons – side effects from pain any other medications, car accident, tumors etc. For persons over 85, one third will develop and suffer from some degree of dementia.
The living will deals with end of life issues, only one situation, whereas the health care power of attorney addresses diminished capacity and end of life wishes. The health care power of attorney can be further customized to address some of the issues you may face such as giving directions on being cared for at home as long as practical, not wanting to be a burden to your family, and selection of a long term care facility, if needed. The elder law attorney can go over other health care options and suggest wording to express your personal feelings and desires for treatment. The health care agent or attorney-in-fact is expected to act under a standard of substitute judgment or what you want and not doing what he or she thinks is best for you.
There are two kinds of power of attorney – one for health care and one for financial matters and you do not have to select the same person to act on your behalf in both matters. The financial power of attorney must be recorded to be valid, the health care power of attorney does not have to be recorded. Sometimes the authority to act in both situations, medical and financial, is all rolled into one document. My preference and that of most elder law attorneys is to prepare two documents.
Your durable power of attorney is likely general and delegates the power to act to the agent at the time of signing. It may need to be updated to authorize the agent to make gifts or do Medicaid planning. You may want to limit or expand powers to act and a successor agent may need to be appointed. You might want to discuss compensation for the agent and require a monthly or quarterly reporting to a third party or use a trust protector to ensure oversight of your assets.
Some people like to create a living trust as a means of asset management and to avoid probate with the expectations the agent on the financial power of attorney will handle only the regular monthly expenses and your trustee will govern everything else to ensure the principal’s estate plan is protected as much as possible.
You should also record all passwords and give locations of your bank and brokerage accounts, then share them with the trustee or agent you have selected.
Disclaimer: Information contained in this column is meant to be of general information on frequently asked questions concerning disability, elder law, estate planning and probate law, and does not contain specific legal advice to a client. No attorney-client relationship is created by reading this column.