In this article, FIRSTAT reviews essential legal documents, health information and other considerations seniors and their families should address to reduce stress when critical life decisions need to be made—and to ensure that a senior’s wishes are fulfilled.
For more complete information on the subjects covered below — and to find out about laws specific to your state — talk with your attorney.
In addition, you can find more detailed information on important legal matters for seniors by visiting the following online resources:
- The Practical Law section of the American Bar Association’s (ABA) Web site, regarding wills and estates and health care law for seniors.
- The ABA’s Commission on Law and Aging
- The ABA Guide to Wills and Trusts
- The ABA Family Legal Guide, which includes chapters on “The Rights of Older Americans” and “Estate Planning”
- National Academy of Elder Law Attorneys (NAELA) online resources regarding a variety of elder law topics
- Tools to locate lawyers who specialize in elder law in your area on the NAELA and ABA sites
Advance Health Care Directives
These are legal documents through which an individual specifies the types of medical intervention and long-term care choices to be made on his or her behalf in the event he or she is unable to make decisions due to illness or incapacity.
Advance directives come in two forms:
- A living will, which provides instructions for the types of health care treatment that should be provided.
- A durable power of attorney for health care, which appoints a person to make decisions on the individual’s behalf when the individual is incapacitated.
Both forms of advance directives are recommended. To make certain they are followed, you should discuss them with your loved ones and give copies to responsible family members, a personal physician and other trusted individuals.
All 50 states and the District of Columbia recognize the validity of advance directives, but state laws vary as to the details. You should inquire with your state’s bar association, local health care provider, physician or attorney.
Wills and Trusts
Wills enable individuals to declare who gets their personal possessions when they die. Wills prevent legal problems and potential conflicts for family members. If you do not have a will, your assets could be distributed according to applicable law. Many estate attorneys suggest that both spouses have a will and update it regularly to reflect changes in the estate.
Trusts come in several types, including a living trust. They are created for many reasons, including to avoid probate (in which a court decides settlement and tax value of an estate), to help care for a dependent family member, and to assist in estate and tax planning. Some trusts can make an individual ineligible for Medicaid. As with any legal document, it's best to consult an attorney.
Guardians and Conservators
When an individual does not complete a durable power of attorney to specify who he/she wants to act on his/her behalf in the event of incapacity, a court can appoint a guardian or conservator after the individual becomes incapacitated.
A guardian is appointed to make health care, personal and financial decisions for a person who is incapacitated through a physical or mental disability. A guardian could have the legal right to decide where the person will live and the medical treatment he/she receives.
A conservator is appointed to oversee the financial affairs of a person who is unable to do so. The conservator takes control of the dependent person's assets and must handle them, including investing, for the welfare of the protected person. Once a conservator is appointed, a dependent person may not liquidate his own assets or determine how the monies will be invested without the consent of the conservator.
Family members and interested parties may petition the court to be appointed a guardian or conservator. For instance, an adult child could petition the court when an aging parent becomes unable to take care of himself.
Collecting Important Information
Seniors can be a big help to their loved ones by organizing their important documents as well as medical, financial and other personal information so it can be easily accessed in the event of a medical emergency or other crisis situation.
Healthline.com recommends recording essential information and location of key documents in a large notebook and organizing copies of pertinent documents in expandable files. Seniors should review this collection with loved ones so they know where to find it.
Following are information and documents to include:
- Birth certificate
- Social Security records
- Health and life insurance information, including policy numbers
- Names and addresses of primary care physician and medical specialists as well as information on hospital admissions and dates of office visits and other medical history.
- Special arrangements made for health care, including advance directives
- Funeral prearrangements
- Medicare documents
- Trust documents
- Sources of income and assets
- Bank statements and safe deposit box locations
- Mortgage papers
- Investment records
- Negotiable securities
- Credit card information
- Most recent income tax return
- Loan papers
- Military discharge papers
- Divorce papers