Jewish World Review Oct. 22, 2003 / 26 Tishrei, 5764
Jan L. Warner & Jan Collins
Care decisions for 'elder orphans'
http://www.NewsAndOpinion.com | Q: I am a single, childless 68-year-old who is an only child with no immediate family. When my now-dead parents became incapacitated, I made all of their decisions regarding their medical care and finances. But now there is no one to do this for me. How do I, and other "elder orphans" like me, ensure that our medical care and finances are handled according to our wishes should we become incapacitated? I am not wealthy, so I don't have banks clamoring for my business. Who is there to make sure my directions are followed?
A: Your questions mirror those of hundreds of thousands "elder orphans" who, like you, either have no close family or are not comfortable with family choices available for making health care or financial decisions should they become incapacitated.
First, regarding health care decision-making: If you have no close family or no family members whom you trust you may want to choose a close friend or a reasonably available adult who is familiar with your personal values and desires. Your surrogate, in addition to being able to withhold or withdraw life-sustaining treatment should your doctors determine that you lack the capacity, should also have the authority to make treatment and placement decisions for you.
Because health care directives allow you to be specific and don't become effective unless or until you are incapacitated, you can include detailed medical directions and thereby avoid your surrogate using his or her discretion. If you don't choose a health care agent, the very family members whom you do not trust or know might be making decisions for you, either based on state law or a probate court proceeding. Therefore, you should specify whom you do not want to act as agent. Once signed, your documents should be delivered to your agent, your physician and your hospital of choice. We suggest that copies also be placed in your automobile in case of emergency.
Regarding planning for financial decision-making during incapacity, you're correct that the trust departments of large banks generally aren't interested in accounts of less than $1 million.
However, in some areas of the country, smaller banks have established trust departments that will handle smaller accounts when there is incapacity, if authorized either by a durable power of attorney or living trust. In drafting your durable power of attorney, it is important to make sure that, like your health care document, it "springs" into existence when you become incapacitated.
This means that you retain full control until incapacity. If you decide on a living trust, you would be the initial trustee and the trust department would be the alternate, with no authority unless or until you become incapacitated as defined by you in the document. Your documents should include exactly how you want your funds spent during your incapacity, including, for example, a mandate that the trust department ensure that you receive care management through a private geriatric care manager or nurse. You should meet with the trust officer and develop a comfort level before you take the step of drafting your documents. Should you decide against a trust department, or should that option not be available to you, you might consider your certified public accountant or, again, a friend who would be readily available. Make sure that your document includes oversight responsibility, including having your monthly statements from all accounts sent to a third person for audit purposes.
Since less than 5 percent of intensive-care patients are capable of understanding or communicating treatment decisions, and since greater numbers of lives are being handled through probate courts, we believe this planning should be accomplished through a knowledgeable attorney to maintain autonomy for as long as possible.
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JAN L. WARNER received his A.B. and J.D. degrees from the University of South Carolina and earned a Master of Legal Letters (L.L.M.) in Taxation from the Emory University School of Law in Atlanta, Georgia. He is a frequent lecturer at legal education and public information programs throughout the United States. His articles have been published in national and state legal publications. Jan Collins began co-authoring Flying SoloŽ in 1989. She has more than 27 years of experience as a journalist, writer, and editor. To comment or ask a question, please click here.
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