Planning for the incapacity and end of life for adults includes consideration of living wills, business powers of attorney, healthcare powers of attorney, wills, interdiction proceedings (commonly known as guardianship) and meaningful discussions with your loved ones about do not resuscitate orders, funeral arrangements and quality of life issues.

Living Wills
These documents allow individuals to give advance directives on the use or withholding of life-sustaining medical treatment, should the individual be unable to make those decisions at the time needed.

Living wills can be tailored to the desires of the individual to withhold all treatment or provide for full or limited courses of medical treatment to be administered. For example the living will can direct whether or not the following forms of treament are acceptable:  cardiac resuscitation, mechanical resuscitation, tube feeding, other artificial or invasive form of nutrition (food), blood or blood products, any form of surgery, invasive diagnostic tests, kidney dialysis, chemotherapy, radiation, respirators, antibiotics, pain medicine and medicine for comfort care.

Living wills can promote harmony among family members and/or the healthcare providers. It also gives family members the comfort of knowing that the decisions they make are consistent with the wishes of their loved ones, which can be of great comfort during a very emotional time and for years to come.

If the individual is capable of making his or her medical decisions, the health care provider will look to the individual to make the decisions as needed, not to the living will or family members.

Powers of Attorney
With this document, an individual (the principal) gives to another person (the agent) the authority to act on his or her behalf.  The power can be all encompassing or limited, at the principal's discretion.  The principal must have the appropriate mental capacity at the time of execution of the document.

The principal retains the right, so long as he or she is of sufficient mental capacity, to revoke a power of attorney at anytime. Furthermore, a power of attorney can be created at the inception with a stated termination date.

The agent owes a fiduciary duty to act in the principal's best interest and owes an accounting to the principal or his/her heirs.  The agent cannot engage in self-dealing without express consent of the principal.

One type of power of attorney is the general or business power of attorney.  This grant of authority may authorize the agent, at the principal's desire, to do anything the principal can do, or be limited in scope as the principal proscribes.

Whether to execute a power of attorney is purely a personal decision and by necessity places substantial trust in the agent.  Some choose to execute a power of attorney as age becomes a factor, others may choose to do so in anticipation of travel, medical procedures or unexpected life events or for peace of mind.

Another kind of power of attorney is the healthcare power of attorney. As with the general power of attorney, this document can grant full authority to the agent or be limited in scope. The healthcare power of attorney may authorize the agent to: access medical records, file insurance claims, represent the principal in dealings with government agencies or insurance carriers, discuss and authorize medical treatment with healthcare providers, make medical decisions and/or contract for institutional care.

The principal may also consider execution of more than one original of the power of attorney or obtain multiple true copies of it, especially if more than one agent is appointed and to account for the loss, destruction or surrender of the original(s).

Finally, powers of attorney are very important papers and should be kept in a safe place.

Interdiction (Guardianship)
This a legal proceeding by which a court appoints a curator (guardian) to act on behalf of another individual who is incapable to taking care of his/her own financial affairs or personal well being.    An attorney is appointed to interview the proposed interdict.  Both the attorney's report and a report of a doctor must be submitted to the Court.

The proceeding is commonly invoked when an individual becomes mentally incapacitated and has not executed a power of attorney. However, this judicial proceeding is more expensive than the power of attorney because of court fees, bond fees and fees paid to two attorneys and at least one doctor.

This can be a full or limited grant of authority. For example it may be limited to the interdict's financial affairs or physical needs.

Medicaid Consultation
Clients consult with Alford & Alford concerning Medicaid funding for nursing home care. Call for an appointment if you or a family member is considering care in a nursing home.

Planning Ahead
Many of these issues associated with elder law require advance planning to achieve optimal benefits.  For further guidance on these issues or the benfits of planning ahead, contact Alford & Alford, LLP for a consultation.