When people ask me what area of law I practice, I tell them that, among other things, I practice Elder Law. That response often has me answering a follow-up question: “What is Elder Law?” The definition that I have carefully chosen to give in response focuses on empowerment. I help older adults proactively manage their futures.
When people envision growing older, some may look forward to retirement—traveling, spending time with grandkids, focusing on old hobbies or taking up new ones. They have a clear picture of independence—a joyous graduation from the daily grind they remember from their working years, raising children. However, that clear picture may be dulled by a fear that such independence may be short-lived, as the loss of physical mobility, mental sharpness, sight or hearing may require dependence on others to get by. There are cartoons that poke fun at old age, likening it to a reversion back to infancy, when we were all entirely dependent on caregivers.
While we did not have much control over who our caregivers were as infants, as adults facing the POTENTIAL future need for assistance from others, we certainly DO have the power to choose NOW. As an Elder Law attorney, I draft legal documents in which my clients choose WHO has the authority to help them with future potential needs, WHEN that authority will become effective, and WHAT decisions the chosen individuals will be allowed to make.
Durable Power of Attorney
A Durable Power of Attorney (or DPOA, for short) is the document signed by a client that designates an agent (called an Attorney-in-Fact, or AIF, for short) to help the client make legal and financial decisions. The document can be drafted to allow the agent to be able to help immediately or only upon the incapacity of the client. The document can be drafted to be very wide in scope, allowing the agent to help the client with just about anything OR can be limited to just a few certain transactions.
Health Care Power of Attorney
A Health Care Power of Attorney (or HCPOA, for short) is the document signed by a client that designates a series of agents (called health care agents or healthcare proxies) to help the client make health care decisions. The document generally takes effect only upon the client becoming unable to make sound healthcare decisions for him or herself. The client, however, can choose what health care decisions the agents or proxies can make in the client’s behalf. A well-chosen health care agent should be a person you trust, who KNOWS your health care issues and concerns, and is willing and able to follow your wishes. The health care agent or proxy may be called upon to make end-of-life decisions for you, so it is important that you trust your agent enough to discuss your feelings regarding end-of-life openly and honestly.
If you are not blessed with family or friends you trust enough to help you with legal, financial, or health care decisions, or you never sign a Durable Power of Attorney or Health Care Power of Attorney granting them the authority to assist you, the court system does have a procedure for appointing an individual to help you if you are found to be unable to help yourself. This procedure involves an interview by a representative of the court system, who helps the clerk of court determine if you are incompetent. If you are determined to be incompetent, it is the clerk of court who decides who will assist you with health care decision (called a Guardian of the Person) and who will assist you with legal and financial decisions (called a Guardian of the Estate). The clerk can only choose among the individuals who have applied to be Guardian…or if no one has applied, the clerk can choose a governmental agency (like the Department of Social Services or the Public Administrator for the county) to serve as Guardian.
Being a rather independent person myself, I tend to encourage my clients to name Attorneys-in-Fact or Health Care Agents themselves, if at all possible. Signing such forms is one of the simplest and quickest ways to take charge of your own future. At some point, we all may need a little help from friends and family. Why not choose who those friends and family will be? Just like the attorneys at Coltrane, Grubbs & Orenstein, those attorneys-in-fact and health care agents will be with you, every step of the way.