Take control of golden years by making legal decisions now
By Brian Caffrey of Scaringi Law posted in Estate Planning on Thursday, December 11, 2014.
As a litigator for more than a quarter-century, I've come to appreciate the effectiveness of sound estate planning and advance planning for the needs of the elderly. From my experience as the son of two parents in their 80s, I also appreciate on a personal level how important it is for these tough choices to be made well in advance.
Most of us don't want to face end-of-life decisions, but not making important arrangements regarding assets and medical care can make situations more difficult for you and your heirs. In my practice at Scaringi & Scaringi P.C., I've seen how sound estate planning and advance decision making can head off potential problems later in life.
Ensuring that your wishes are respected
Estate plans, consisting of wills and trusts to defer federal taxes, are powerful and essential. So, too, are powers of attorney and health care agent designations that entrust certain decisions to others when you no longer can make them for yourself. Finally, a living will governs the kind of end-of-life care you will ─ or will not ─ receive, taking these weighty decisions out of loved ones' hands because you cared enough to make the hard choices in advance.
In short, making these legal choices now will make things easier for everyone involved later. You'll enjoy the peace of mind of knowing that your future will play out as you planned, no matter what happens to your health. And your loved ones will thank you for having removed the heavy burden of these life-and-death decisions from their shoulders.
I speak from personal experience. My parents made these decisions well in advance of the adversities dealt by old age. My brother and I share responsibilities as their agents. We are fortunate to be able to bring our different but complimentary skills to bear on one of the most important jobs we've ever had.
Sharing this responsibility works for us, but every family situation is different. Though the normal inclination is to have a family member look after your interests, the guiding principle must be choosing the person you believe will care for you and your property as you have directed, acting selflessly and with utmost respect for your needs and wishes. You also don't have to select the same person to handle all aspects of your affairs.
Powers of attorney can be broad or more narrowly drawn. Broader powers can grant the person you select control over a myriad of decisions, ranging from whether you can continue to live independently to managing your bills, bank accounts and property.
Advance medical directives and living wills set forth your desires regarding end-of-life decisions. They can also be used to designate a health care agent to carry out your end-of-life wishes should you become incompetent, and either be in a persistent vegetative state or an end stage medical condition with no significant hope of recovery.
Through these documents, you instruct your physicians and other caregivers about whether you want various medical interventions, such as artificial means of nutrition, hydration and life support near the end of life. By making these choices in advance, you spare your loved ones from having to do so at a time of crisis.
Pennsylvania to tighten powers of attorney
Unfortunately, not every agent under a power of attorney selflessly carries out the principal's arrangements and wishes as specified.
But there are legal restrictions on the actions of agents. Statutory revisions to Pennsylvania's power-of-attorney law, providing for tighter controls on the actions of agents, take effect in January, and I plan to review some of those changes in a future article.
Even under current law, a principal who is competent can revoke or change her power of attorney at any time. Additionally, your attorney can craft a power of attorney so that your agent's powers only become effective under certain circumstances, such as the principal's becoming mentally incapacitated or incompetent, as judged by a physician.
Finally, an agent can be called to account for his or her actions in a court of law. State law requires an agent to sign statements agreeing to never co-mingle a principal's assets with his or her own; and the agent must commit to exercise the power of attorney exclusively for the benefit of the principal.
When assets and property are at stake and the owner no longer is able to fully manage her affairs, legal conflicts are sometimes inevitable. This is why it is so important to have an experienced attorney by your side.
I've seen in my own life and in many years of practice how properly drawn estate plans, living wills and powers of attorney can protect against the difficulties that come with advancing age. These legal vehicles offer the most proactive protections against the adverse consequences of an unknown future, which we all face.
There's no better time than the present to act, so give yourself the best chance to achieve peace and security later in life.