The Impact of Illness on Estate Planning and Probate
Serious illnesses come with legal and financial consequences, particularly ones such as dementia. Anyone who has an illness that will lead to a decline in mental and physical health should update their financial and healthcare arrangements promptly. Having the right documents in place ensures others carry their wishes out as they decline.
Why is This Important?
Certain diseases interfere with a person’s ability to think clearly. They cannot make decisions or have a say in their legal and financial matters. When doctors catch the disease early, however, they still understand the consequences of the actions they take. It’s best to work with an attorney when preparing documents related to late-stage and end-of-life care.
The Estate Preservation Law Firm, based in Rock Hill, SC helps the individual understand state laws and ensures they craft all documents to make certain others carry out the wishes of the individual. As these laws vary by state, a person needs guidance. In addition, they must understand how any change in their situation could affect the documents. The documents might need to be updated if a change in their circumstances occurs.
Where to Start?
The first thing to do when preparing these documents is to determine which approach to use. The individual must explain what they wish to happen, as this determines which documents they need. Documents a person might need include ones that outline their healthcare wishes if they cannot make decisions on their own and ones that share their estate plan and financial management if they can’t handle these matters independently.
Advanced Directives
Advanced directives are documents designed to communicate a person’s wishes when they can no longer share this information for any reason. These documents outline their values and wishes based on what they feel is important. Each person must decide which documents are needed to share this information.
Advanced directives first appeared in 1967 in America and go beyond providing informed consent. The documents allow an individual to keep more power and autonomy over what happens as they reach the end of their life, even if they cannot voice what they want. However, they must prepare these documents when they are of sound mind to be valid.
Types of Advanced Healthcare Directives
Advanced directives come in many forms. The following are common advanced healthcare directives a person may wish to have in place. However, others may be appropriate, as well.
A healthcare power of attorney is a document that states who will speak for an individual when they can no longer speak for themselves. Many people refer to this individual as a healthcare agent or healthcare proxy. The person serving as power of attorney in this situation must know the individual’s wishes and abide by them. They need to fight for what this person wants, even when doing so is hard.
A physician’s order for life-saving treatment is a plan outlining the patient’s preferences for end-of-life care. This plan shares the preferences of the patient along with the healthcare provider’s judgment based on the medical evaluation of the patient. Both parties must agree upon and sign this document before it will be valid.
Living wills are documents a patient crafts to share their preferences regarding treatment as they near the end of their life. These documents may provide information about the patient’s religious preferences. Authorities may use this document when a person is permanently unconscious, as well.
If a person doesn’t want cardiopulmonary resuscitation (CPR), they need to have a do-not-resuscitate (DNR) order in place. This document states if their heart stops beating or their breathing stops, medical professionals won’t take measures to bring them back. A doctor needs to sign this order and include it in the patient’s chart.
Other advanced directives may share the patient’s wishes regarding dialysis, brain donation, organ donation, and more. An attorney becomes of great help in determining which documents the individual needs. These documents must be specific when outlining what the patient wants to ensure there is no confusion.
In addition, every person should have a document in place that states the caregiver can receive medical information about a patient. Without this document, medical providers cannot speak to the caregiver. Doing so would violate privacy rules.
Financial and Estate Management Advanced Directives
Besides healthcare advanced directives, people need to have directives in place for their financial and estate management. These documents need to be created while the patient still has the mental capacity to make decisions and understand the consequences of these decisions. What types of financial and estate management advanced directives might a person need?
Every person should have a durable power of attorney. This document names the individual responsible for making financial decisions when the patient cannot do so. This helps to avoid legal action that may lead to a person losing control of their financial affairs.
Every person, regardless of what assets they own, needs to have a will. This document contains information on the distribution of their assets and estate after their passing. It also outlines who will take care of their children and pets.
The document may also include gifts, trusts for estate management, and burial arrangements. Create this document as soon as a medical professional diagnoses the individual with any type of dementia, so they are of sound mind when making these decisions. This reduces the risk of the will being challenged in court.
Some people choose to establish a living trust to outline their wishes for the management of their money and property while they are alive. They appoint a trustee who will hold any titles to property and money. They can then pay the patient’s bills and make decisions regarding their finances and properties if the patient cannot.
This document can cover many types of assets and will provide a plan for transferring or selling these assets. This helps to avoid the need for probate and outlines how the court should distribute these assets when the last beneficiary dies. Those named in the trust will no longer benefit, and the assets must be distributed in other ways.
Experts recommend having one person serve as the healthcare power of attorney and another person act as the financial power of attorney. This reduces the risk of one person abusing their power. However, if a patient wants one person to take on both roles, it is helpful to have outside parties overseeing their actions, such as an accountant who will review financial records.
How an Illness Impacts Estate Planning and Probate
People need to have discussions about their end-of-life care early. Families should not wait until they receive this diagnosis. People with dementia decline at different rates, and every person should have a say in their treatment as their time here comes to a close.
However, a person who has a recent diagnosis of dementia may find it difficult to have these discussions. They know they need to, but they are probably anxious, frustrated, and worried about the future. They may even be in denial.
Families need to recognize this is normal and have patience with the individual. If the family needs help in addressing these topics, they should turn to a geriatric care manager or attorney. Medical professionals can be of help in finding these individuals, as they work with patients in similar situations regularly.
At times, dementia has already progressed before the person receives a diagnosis. This makes the process more challenging. Fortunately, the competency needed to sign a will is less than the competency needed to sign a document. An attorney can be of help in determining if the person is competent to sign a will under state law.
Gather all papers related to end-of-life care. Keep them in a secure location and share them with family members. Many people choose to have their attorney keep copies of these documents, so the attorney can access them when needed.
A person should review these documents regularly, especially when there is a change in their circumstances or when state laws change. Following each review, change these documents as needed. Work with an The Estate Preservation Law firm when doing so to ensure the changes are valid under the law.
Aging is difficult. A person does not want to become a burden on their loved ones. By planning for end-of-life care early, they can reduce the risk of this happening. Speak with The Estate Preservation Law Firm today by calling 803-973-6632. This estate planning lawyer in Rock Hill, SC offers a free case consultation, so families can have peace of mind knowing they are helping a loved one prepare for the future, regardless of what it holds.