health care proxy - Trust and Estate Planning Law Office

Looking Ahead: Estate Planning for Early Onset Alzheimer’s and Dementia

Alzheimer’s and dementia are two of the most common fears that come with age, especially if you have a genetic predisposition to these diseases. The tragedy of these conditions is that there is truly nothing you can do to stop yourself from losing your memory. However, as you face this stark reality, it is important to be aware that there are steps that you can take, from a legal perspective, to set up your descendants for success before it is too late. When creating an estate plan, you must legally be of sound mind. If the attorney has any doubt that you have the capacity to make your own decisions, they are obligated by law to consult with a doctor. If you are at risk for developing early-onset Alzheimers, it is important to avoid delaying your estate planning journey.

Appointing a Power of Attorney

One of the most integral steps to take if you are at risk of developing Alzheimer’s or dementia is appointing a power of attorney. This allows you to communicate your healthcare preferences through legal documents. This also ensures that your medical and personal care decisions are aligned with your values and preferences, even when you are no longer able to make decisions due to cognitive decline.

A power of attorney should be bestowed on the person that you trust most to make medical decisions on your behalf when you are no longer able to do so. Your healthcare proxy will be the person advocating for you and reflecting your wishes. A durable power of attorney is equally as important. The person that you chose for this role will handle your financial affairs, pay bills, manage investments, and make any decisions regarding property or the law on your behalf.

The Living Will

The fear with Alzheimers is that you will one day no longer be able to take care of yourself, and that you must rely on others to make decisions on your behalf. Perhaps the single most essential document in estate planning for early-onset Alzheimer’s and dementia is your living will. This document is crafted while you are in a sound state of mind, able to think critically about your future. A living will can contain any and all of your wishes for how you hope to live out the rest of your life. It gives you power over your future and gives advance directives to the people responsible for taking care of you. Your living will should include preferences for medical treatment and end-of-life care as well as your desires for life-sustaining treatment, organ donation, and other critical decisions.

Other Estate Planning Considerations

Just as you would with an ordinary estate plan, it is important to think about all of your assets and what you want their journey to be. There are various types of trusts that can be used to pass down different types of assets in a wide range of formats. While you can still make decisions, it is up to you to secure both your own financial future and the future of those you care about. You will need to designate guardianship for minors if you have children you will not be able to care for in the event of an early-onset of the disease. You should also consider your long-term care options and how they will affect your assets.

If you plan to go to a long-term care facility or receive government-subsidized at-home care, there are important considerations. Nursing homes and other long-term care facilities will drain all of your assets, even liquidating properties, before turning to state-subsidies. In order to protect the financial futures of your beneficiaries, it is important that you set up an irrevocable trust. An irrevocable trust separates the ownership and control of the assets it holds. This means that you can continue living in your house, but since the asset is no longer legally owned by you, it cannot be targeted by nursing homes or other creditors. After you pass away, the house will safely go to your beneficiary.

Navigating this process is extremely difficult, and likely impossible, without an experienced attorney by your side. A good attorney will set you up for success to the best of their ability in your personal, financial, and medical future. If you have any further questions about when it is the ideal time to begin your estate planning journey, please call the Trust and Estate Planning Law Office at (718) 333-2395 to take your next steps.

“I Care A Lot” reveals the unfortunate reality of POA and Health Care Proxy

In 2021, Netflix released the movie “I Care A Lot.” In this film, a rich Marla Grayson repeatedly convinces the court that elderly individuals are not mentally stable and need to be taken care of. After the court grants her guardianship, she moves her victims into an assisted living facility, sedates them, and takes their phones to ensure zero contact with the outside world. During this period, Marla sells her client’s properties, cars, and assets and banks the profit. However to her surprise, her next victim Jennifer Peterson is a lot harder to manage. Peterson’s son is a dangerous mafia boss who makes it his mission to make Marla’s life miserable and release Jennifer from the assisted living facility. While the film is intended to be a satirical and dark comedy, it references many financial and healthcare issues that could have been prevented with a definitive estate plan that included a Power of Attorney and Healthcare Proxy.

“I Care A Lot” Teaches Valuable Estate Planning Lessons

One day, Marla knocks on Jennifer's door and randomly presents herself as a newly appointed guardian. This could have been prevented if Jennifer, an extremely wealthy elderly woman, had appointed a power of attorney and healthcare proxy. While many often believe the two tackle the same problems, that is incorrect. A power of attorney appoints someone to take care of financial decisions for you. On the other hand, a healthcare proxy appoints someone to make medical decisions for you when you are no longer mentally or physically capable to do so.

Real-World Implications

Although the film is clearly intended to be satirical and dramatizes the life of a fraudster, elder financial exploitation is no laughing matter and has been on the rise. According to a 2018 article from the Securities and Exchange Commision, a study in New York state found that financial fraud cost elderly victims $109 million, though that number is likely much higher due to underreporting and the higher occurrence of healthcare fraud since the beginning of the COVID-19 pandemic. An article from the American Bankers Association reports that financial crimes cost elderly victims $2.9 billion in 2022. Elder financial abuse is among the most frequent forms of elder abuse, and elderly people are more likely on average to be targeted for financial fraud. Two factors in the prevalence of elderly financial exploitation are social isolation and mental impairment. Those older persons without close family or friends and those with physical or mental impairments such as Alzhemeir’s are more likely to be victims of financial crimes and are the preferred targets of fraudsters.

Elder financial exploitation takes many forms. In some cases, it may involve a caregiver convincing the victim to sign over to them their power of attorney. In other cases, it might involve a caregiver stealing a victim’s cash, cashing their social security checks, or using their credit cards. In more extreme cases, it might involve the victim signing over inheritance rights to real estate or savings accounts to “new best friends” or previously uninvolved relatives. Because there are no physical signs of abuse, elder financial exploitation can be extremely difficult to catch and can continue for years before irregularities are finally realized.

How To Protect Your Loved Ones

To protect your loved ones from potential exploitation, it is important to look for warning signs and report them immediately. It is also important to familiarize yourself with the wide-range of warning signs and the organizations dedicated to investigating and preventing elder financial exploitation. Some warning signs include fraudulent signatures on financial documents, unpaid bills that had previously been recurring automatic charges, sudden changes in a person’s will, trusts, or insurance coverage, and an unexplained transfer of assets to a caregiver or unknown third-party. This list is not exclusive, as fraud can occur through investments and annuities, telephone “sweepstakes” scam, and phony home-repair charges.

Some of the many helpful organizations at your disposal include the Adult Protective Service, National Elder Fraud hotline, and Long-Term Care Ombudsman programs. An experienced elder planning and Medicaid fraud attorney will also help in perceiving cases of fraud and contacting the proper authorities. In addition to these resources, it is important to be open and honest when discussing finances with your loved ones. Never sign a financial document without a second opinion, and never feel pressured to engage in a business dealing or investment. Report anything you feel uncomfortable about to your loved ones or the proper authorities. Above all, do not remain silent!

Conclusion

The satirical “I Care A Lot” is a worthy watch and certainly has its humorous moments, however it is most important to heed its lessons. Elderly people are at particular risk for financial crimes, and they are often the preferred target for fraudsters because of their perceived vulnerability and fragile health. Although the signs of exploitation and fraud are varied and sometimes hard to spot, remaining vigilant and engaging in frank financial discussions with your loved ones will help protect you from becoming a victim. Having an experienced estate planning and asset protection lawyer in your corner will also help you to prevent any potential damaging financial occurrences. For all your asset protection needs, call the Trust and Estate Planning Law Office at (718) 333-2395.

What is a Health Care Proxy, Living Will and Durable Power of Attorney?

As you get older, you may come to realize that you or your loved ones will eventually be unable to make major decisions on their own. Before that time comes, it is common that people consider a health care proxy, living will, or power of attorney. However, many people are unaware of the significance that these documents hold. It is important to understand the difference among these various forms depending on what you and your loved ones want.

Health Care Proxy

A health care proxy is a document that directs who will make your medical decisions for you after you are deemed to be unable to make your own decisions by a physician. Usually a family member or trusted friend is assigned this role to execute medical decisions of your best interest when you are unable to. You will be able to continue to make your own choices as long as you are still in the right state of mind. For example, if you were to fall into a coma, the health care proxy you appointed would take the steps necessary as per your wishes in this unexpected situation.

Living Will

A living will is simply a document that contains your medical wishes written for family members, friends, and health care facilities. In the situation that you will be unable to communicate your health care wishes, this document should give loved ones and others an idea of what you would have wanted. This document does not appoint anyone to oversee and speak on your behalf. It is purely a document stating your medical wishes.

Durable Power of Attorney

A durable power of attorney assigns a person (or people) to make financial decisions unrelated to making health care decisions for you. This includes factors such as paying your bills and can even include managing real estate and other assets. It is possible for the health care proxy to overlap with the power of attorney but there is a separation between the two. Power of attorney relates to financial matters while a health care proxy is exclusively medical decisions.

To summarize: a health care proxy dictates who makes your medical decisions (in both predicted and unexpected events) while a durable power of attorney dictates who will make your financial decisions for you. In addition, a living will is just your medical wishes on paper for any possible event that may arise.

A factor that people tend to forget is that an agents’ authority can be temporary as well as permanent depending on the situation. In the situation where you may be physically incapacitated for a limited amount of time, the agents’ are able to make decisions for you during the time you are unconscious. After you wake up, they lose their authority. In permanent situations such as being in a vegetative state, suffering from Alzheimer's, or otherwise, agents will be allowed to be authorized to make decisions on your behalf.

It is crucial to consider which loved ones would be the most suitable to carry these forms of authority. These kinds of documents may save trouble in the future in case anything arises. For more information on health care proxies or estate planning, please contact the Law Office of Inna Fershteyn at (718) 333-2395.

How to Avoid Conflict Between Your Power of Attorney and Health Care Proxy

When assigning people to be your power of attorney agent or health care proxy, you are bound to choose the people who you deem to be the most fit for the role. A health care proxy is someone who you assign in advance to carry out your medical decisions when you are deemed unable to. A power of attorney agent is someone who is also assigned to make financial decisions for you in the situation that you’re unable to. In some cases, they can be the same person for both positions but in other cases, they can be different people. Although a power of attorney agent has different responsibilities from those of a health care proxy, it is not uncommon for the two to occasionally have some overlapping decisions. When this happens, the possibility that there will be conflicts between the two is not surprising. So what are some ways to prevent these conflicts?

1.) Choosing One Person For Both Roles.

This is the simplest and most popular choice when deciding on who will be responsible for both roles. It allows for just one person to make your decisions for you (both medical and financial) in your best interest without having to go through the trouble of talking- and possibly arguing with another person.

2.) Pick Two People Who Can Get Along With Each Other.

Sometimes, it’s not reasonable to choose just one person for both roles. Not everybody is good at everything. For example, you may have an ideal person in mind for being your health care proxy but that same individual may not be a good choice to represent your finances. In this case, you would have to get another person to be your power of attorney agent. Although “getting along” may seem self-explanatory, people tend to choose others who are simply suited for the role while overlooking clashing personalities. This can lead to arguments down the line so it is best to ensure that the two representatives can get along and sort out issues in a calm manner.

3.) Assign a Third Person With The Power To Settle Disputes.

If necessary, adding a third person to be a mediator of the two can decrease the number of conflicts that may arise. Additionally, this person’s name should also be included in the documents indicating what their role is. It is best to discuss with all parties involved about your wishes and what you would want to happen in the case you become incapacitated.

It is never ideal to have people bicker over what you might have wanted. Hopefully, with these tips, disagreements will not occur between your health care proxy and power of attorney agent. If you or a loved on is having trouble figuring out estate planning, please contact the Law Office of Inna Fershteyn at (718) 333-2395.

How to Care for Aging Parents When you Can’t be There?

All of your life your parents have always been there to support you and guide you through your development. As a child, your parents taught you how to feed yourself, dress yourself, and helped you do all your homework. Then, when you got older, your parents were there to give you advice on which college to go to and which career would be a perfect match for your passions. They were there to support you during your marriage and took care of your children when you went to work. Your parents dedicated their lives to caring for you and now the roles have reversed. Now, it is your turn to take care of them. This can be an extremely stressful task, as it is hard to allocate time to caring for your parents, caring for your children, and working full time. At the same time, it can be even more stressful leaving your parents in the care of strangers because you can't be there to care for them. The best decision in this case is to refer to an Elder Care Attorney for guidance in making the best decision for your family.

An Elder Care Attorney can assist you in drafting a power of attorney and healthcare proxy.

Power of Attorney:

A power of attorney gives an individual the right to act on your behalf. There are four types of power of attorney documents that are mostly commonly utilized. These include General Power of Attorney, which means the document comes to a close when the principal becomes incapacitated, revokes the agent for the power of attorney, or passes away.The power of attorney has the power to make medical decisions on behalf of the senior in need of care. A Durable Power of Attorney enables the agent to maintain power even once the person becomes incapacitated. This implies that they can make decisions for the senior even once the senior is not in a clear and present state of mind. A Special Power of Attorney gives the agent specific limited powers within a specific area. Lastly, a Springing Durable Power of Attorney comes into place when a specific event causes the principal to become incapacitated. This document must be prepared while the individual is still competent to ensure that the agent has the power to make all of these imperative decisions when the time comes. A Power of Attorney allows the principal to appoint a specific agent who will act on their behalf in the case that they become incapacitated. Therefore, this individual must prioritize the needs and preferences of the principal by making imperative decisions. These decisions pertain to finances, healthcare, recommending a guardian, etc. This ensures that your loved one’s wishes are met through the guarantee of financial security and effective healthcare. Now you may ease your concerns about the financial and healthcare aspects of your parent’s care. The power of attorney guarantees that you will be able to act on their behalf if you are the selected agent. Therefore, you will be able to care for your parents even if you are not physically beside them every step of the way.

Health Care Proxy:

A Health Care Proxy is a document in which the patient selects an agent who will be responsible for making their medical decisions for them. When the patient is unable to make their own decisions concerning their health and overall well-being, the healthcare proxy will be the one responsible for making the imperative medical decisions. If you are the agent declared on the healthcare proxy documentation, then you are the one responsible for making all of the decisions concerning your parents health and well-being. This guarantees thay you do not have to worry about other individuals making decisions on behalf of your parents without any input from you. This is a way for you to oversee your parents health even if you are not constantly taking care of them. You should not have to choose between working full time to prove for your family, moving from a different state of residence, not being able to care for your children after school, in order to become your parent’s caregiver. There are a variety of different ways in the modern world to care for your elderly parents without having to quit your job and other responsibilities.

COVID-19 Concerns:

With the pandemic in full force, you are most likely even more concerned about the care of your elderly parents. The constant worrying if your parents have food in their fridge, if they are taking their medications, if they are safe can all be reduced and even avoided by taking the first step in hiring an Elder Care Attorney today. You deserve to know that your parents are in good hands without having to feel guilty for not being the one to physically care for them. You should not quit your job and risk being unable to pay rent and purchase necessities just so that you can can care for your aging parents, especially during the pandemic that has caused great instability within the current economic state of the United States. The final decision is yours. With the proper documents completed, you will be the one in charge of making all of the most important decisions concerning your parent’s well being. Make the decision today to hire an esteemed Elder Care Attorney who will guarantee that you will be able to care for your aging parents even if you can't be there in person.

For further Estate Planning information please contact the Law Office of Inna Fershteyn at 718-333-2395 to best prepare for your future through will drafting, power of attorney, health care proxy, and living will documentation.

Looking Ahead: Estate Planning for Early Onset Alzheimer’s and Dementia

"I Care A Lot” reveals the unfortunate reality of POA and Health Care Proxy

What is a Health Care Proxy, Living Will and Durable Power of Attorney?

How to Avoid Conflict Between Your Power of Attorney and Health Care Proxy