March 22, 2021

Handling Legal and Heath Issues When There Is No One To Help




Several readers have expressed interest in a subject that could be extremely important to the future of your satisfying retirement: How do we prepare to have our legal and health wishes followed if there is no family, relatives, or friends willing or competent to take on those responsibilities? Are we willing to have a court decide what is to become of us and our affairs? I assume that the answer is, "No." Being at the mercy of an anonymous judge in probate court is not where most of us would choose to find ourselves.

That means there are certain basic steps that should be taken while we remain in full control of our facilities and decision-making abilities. There are documents to be prepared and someone to be selected to implement our wishes. Since I am not a lawyer, anything I say comes from my own experiences and Internet research. As the saying goes, check with an attorney before proceeding.

Likewise, I have a family, and others I would trust to handle decisions that are in my best interest. So to answer the questions asked, again I turned to some basic research that I hope will provide some answers.

Let's start with some of the legal stuff that can be the foundation of your future care. I won't go into too much detail, but if something seems as if you should have this, I will provide a few links at the end of the post. Plus, the Internet has all sorts of reliable resources to find out more.

1) Will. This should be the first document you prepare (or have prepared for you). It is the legal framework for what happens to your possessions and financial resources upon your death. It specifies who gets what and when. Wills can be prepared using a simple online form or from forms available in office supply stores. Online places, like Legal Zoom, are places to look.  A lawyer can draw up a will as well. This is best if your situation is a little more complicated.  

2) Living Will. This document is the one that helps spell out the medical care you want prior to your death but when you are unable to communicate your wishes. Do you want or not want a feeding tube used? Do you want a "Do Not Resuscitate"  order for medical workers, and when should it be invoked? How about devices that keep you alive when the medical likelihood of recovery is minimal? 

These are very tough subjects to think about, but imagine how much more stressful and difficult it would be for someone else to make these decisions without knowing your wishes.

3) Power of Attorney. This document gives some other person or entity the ability to make medical and financial decisions for you. You can revoke and rewrite a POA as many times as you want.

3) Durable Power of Attorney. This is what takes the place of the Power of Attorney document upon your incapacitation or death. The person or entity named is fully responsible for all decisions that involve your care and finances.

4) Health Directives. Basically, this acts as a Durable Power of Attorney directive, though it only deals with health decisions, not financial ones.

There are other ways to handle your affairs, such as putting possessions in trusts or estates, but those topics are too involved for this post. In essence, they create a separate legal entity for all your possessions and resources. I urge you to do some research if this seems like something you'd like to know more about.


OK, now we are at the heart of the issue: We have reviewed what legal documents should have prepared. But, who is going to implement them according to your wishes? Who knows you well enough to make tough decisions and speak up on my behalf, even if that means demanding more information and details from a doctor or lawyer? Who will do what you want to be done for as long as possible?

One caution as you think about the medical concerns is to not make it impossible for the person implementing your wishes to follow through. For example, you tell someone you never want to go to a nursing home. Well, the reality is that sometimes the only prudent medical or financial choice is to do so. Staying at home just won't work. I caution to be careful of how narrow a window of options you make part of your legal desires.

The place I found to begin to help find answers and workable solutions to this critical dilemma is an organization called Healthcare Improvement. On a special website,  they have assembled the best collection of information on this subject that I found.

It explains all about what a health proxy is and how to find one, even if a choice isn't obvious. There are sections that provide checklists to assess possible candidates for you. It helps guide you into what to do if you don't have a family member, relatives, or even neighbor you trust to take on these responsibilities. Fiduciary companies, Banks, and other financial institutions are possible options that have very strict legal oversight and responsibilities to you that must be followed.

This site makes the very wise suggestion of filling out the various forms and putting your wishes in writing; even if you don't settle on someone to handle your affairs, the court system will place great weight on your notarized, written wishes.

I urge you to visit The Conversation Project website for the most complete review of what all of this means to you and how to make the best decisions.

If a lawyer reads this post and would like to clarify or amend anything written, by all means, leave a comment. My legal training begins and ends with taking care of me and my wife's preparations and overseeing my parents' estate after their deaths.

For those who asked for a post centered on this delicate subject, I hope I have given you at least a place to start to get answers for your unique situation.


25 comments:

  1. One thing we learned a few years ago: a Will is a matter of public record and anyone can request a copy from the courts. A Trust is a private document and only recipients know what you've designated and then, only what they receive.

    This detail mattered to us and was worth the extra cost of an estate attorney.

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    1. Good point, Elle. If some of what you want to occur after your death should remain private then a will isn't secure.

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  2. All good advice Bob and people are best to document all their wishes long before they need it.

    I especially wanted to comment on your caution as you think about the medical concern to not make it impossible for the person responsible for carrying them out. My mother-in-law healthy and in her 60s had my wife's sister, the only close relative that lived nearby (we live in a different country), to promise hand on heart to "Never put me in a home". Of course she promised, realistically what choice did she have, but more than 20 years later in her late 80s it was getting unsafe for my mother-in-law to be living on her own. She was nearly blind, deaf, unsteady on her feet, and living alone.

    My wife's sister was agonizing over what to do and her own retirement plans were postponed for years as she needed to be available at a moments notice whenever her mother needed her. My mother-in-law has since passed away but we all need to be conscious of what we are asking for when we make such requests. It can put a huge and unfair burden on those that love us the most.

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    1. I hadn't really considered that issue until I wrote this post. Asking soneone to carry out your wishes has to come with some options or wiggle room for the person tasked with doing what you want.

      Make it clear what is a desire and what is a firm 'rule" and allow the responsible person input on whether what is being asked is reasonable.

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  3. I never used my will. In a joint property state it was not required and it was never even invoked as we had rights of survivorship on all financial documents. I don't have one now although I may.My daughter has a durable power or atty and a living will and medical directive. Those are more important to me. However, their names are already on some financial documents and will be on the rest, and my family is small, and I have been giving things away already that are of value. I DO agree that there needs to be some realism in both who we choose to act on our behalf (is someone our age or close appropriate, really) and realistic in our expectations. My care plan includes moving in with my daughter at some appropriate time hopefully a long time in the future and we have discussed the logistics in depth. But I also want to make it clear to her that if the burden becomes to great for her either health wise or danger wise, that I trust her to make the best decision, rather than making too many arbitrary requirements.

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    1. You have echoed David's caution above. Imagine if a legal firm or bank is restricted in the way mentioned. They would never move someone into a safer or more reasonable environment because they will not take the legal risk of disobeying their client's wishes regardless if doung so would be better for their client.

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  4. I have all four things you have listed and it's also important to review your choices from year to year. Things can change---divorces, health issues, moving a distance away---for the people you name and you might have to tweak things.

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    1. Thst's a good point. We have had to revise our documents a few times to keep things current, too.

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  5. This was an excellent summary Bob! Well done.
    For those of us who move a great deal, make sure your will is, at least, notarized in every state that you reside. Arizona has some of the best survivor laws and probate is easy- not true in many other states. I was shocked to learn that our Arizona will was not considered valid in Kansas. Many states have the law that people who die without wills their estate is split in two or three different ways. In Virginia if you are divorced and remarried- 1/3 goes to the spouse- the rest goes to the children. A will is so important just to avoid the cost of probate....
    In most cases it is easy. Just take your current will to a bank and get it notarized. Our wills have ten different notaries---so far :)
    The other thing we found out is that in most states a will - written by hand and notarized- is considered valid in most states.

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    1. Good to know. Things are tough enough for survivors without having legal roadblocks to deal with.

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  6. Hi Bob! Thanks again for providing information about something we all need to be talking about more and taking care of before needed. But I was surprised that you didn't mention a Family Trust as another document that is important. Technically, at least in my husband and I's case, our Family Trust includes EVERYTHING you mentioned in your list above for different reasons. But it actually makes everything an easier process and is more "secure" than a will. There is never a reason for probate when you use a trust and that is not true with just a will. Depending upon what state you live in, probate is a must depending upon how much you leave behind. Plus all the supporting documents like the Health Directive, the Durable Power of Attorney, etc. are included. I am not a lawyer but we JUST had one done and that is why I wrote about it on my recent blog post. Such an important conversation and I applaud you for bringing it up AND for sharing this valuable information. ~Kathy

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    1. I knew I wouldn't be able to cover all the options, so thanks for the additonal information. Trusts are not inexpensive, but it is a choice.

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  7. I’m one of the ones alone, widowed, no children and but a few close friends. My friends are my age or older. My one brother lives states away and is 81, therefore too much for him to handle any of this.
    So my ex SIL, who is also my close friend is my healthcare directive person and I have a lawyer who is my executor. I have given my lawyer all my info and she did my will. All of my financial savings go to charities including my home. All of these have the charity beneficiaries already named.
    My only problem is the POA. In Fla., it’s risky, as they have immediate control of your money even while you are mentally able. Many horror stories, so I hesitate and my lawyer will not do it either...a conflict of interest thing. So I haven’t picked one...and people hesitate to even take on that job of handling financial affairs..
    Also on a side note, if you have Netflix, watch "I Care A lot"...about this very subject...

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    1. In California, there are licensed fiduciaries and there is a national organization. You might look into that for financial affairs. I found mine (with a backup) through my attorney (interviewed a few and selected best fit). The primary + backup have worked together in past according to the attorney so it's nice to know there won't be a void. They are 'known or designated' but have no power at this time.

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    2. I watched the movie Mary. It is scary from a thriller standpoint and does make one aware of the need to know how loved ones are being cared for.

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  8. I worked and scoured hard to find an estate attorney that worked for a small firm ( in business 70 years with multiple practitioners) as I wanted continuity (being alone in the world). Many attorneys around, but most were sole practitioners. 2) Attorney helped me find a fiduciary (and a backup) to take over finances when necessary. 3) will also serve as health care proxy when needed. My friends are older mostly, or have extended families that take their time so it was important to have people lined up -my team. Also have the CPA + financial planner.
    I will be looking into the resources you listed as I have not given a lot of direction yet for medical situations, what I'd like, etc. Thank you for the resources.

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    1. The Converation website was tremendously helpful in my prep for this post.

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  9. We recently updated our family trust, wills, health care directives,etc.Covid put a bit more of the fear of God into us and well, it was just time to do it anyway. We also encouraged our grown son, who is single with no kids, to update his financial things too.

    If you have grown children who are unmarried, do you know the passwords to their accounts? Where their financial papers,insurance policies, etc are? It can be a delicate topic (Though it never has been in our family) but an important one. We sat down as a family and reviewed our end of life wishes, etc. and reviewed who is power of attorney,finances,medical,etc.

    It’s a thoughtful and sobering process but it feels good once it’s done!

    Single people often think they don’t need a will but many have life insurance or benefits through work, or a home or a condo that the government will take charge of if they do not have a will etc.

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    1. That is a very good point Madeline. One of our daughters is single and we don't know her passwords and where certain papers are.

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  10. Great information, Bob! I was one of those requesting that you touch on this subject because my husband and I are child-free and our friends and siblings are of similar age. Fortunately my older brother married a women (a little) younger than me so she's been named in our trust to oversee our affairs if/when needed. I still think we need to find another entity in case something happens to her.

    Thanks for some great resources... I'll check them out!

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    1. You are very welcome, Janis. As you can tell from the responses, this is a subject that touches many of us.

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  11. All great information in the post and in the comments. I would just add that estate law can vary significantly from state to state, so in looking at any website information, be sure that it is in compliance with your own state's laws. A generic website is great for general information, but you want to make sure that your wishes are going to be legally enforceable in your jurisdiction. As far as your health directive goes, sometimes called an advance directive, you might check with your primary care doctor to get some direction. As for your "things," if you have things you care about, because of either their financial or sentimental value, it's worth the investment to consult with an estate lawyer (not all lawyers are estate lawyers -- be sure to talk to someone who specializes in estate law). I'm a big believer in buying an hour's worth of expert time. The lawyer can tell you what you can safely do on your own, and what you might need some help with. The lawyer can also refer you to other resources, like fiduciaries or financial advisors, if needed. The cost of an hour's worth of advice is well worth it if it saves you much more than that in the long run, both in terms of money and emotional peace of mind.

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    1. Solid advice from a former law professor. Thanks, Galen, for these necessary details. Our final arrangements are too important to be left to chance.

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  12. Bob, Thanks for this! I didn't know about The Conversation Project, and I've bookmarked it so that I can go back later and really delve into it. One thing I have learned from the experience of being a health care proxy for a seriously ill friend is that you have to keep reminding yourself to pay attention to what the other person wants, which may not be the same as what you would want if you were in the same circumstances.

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    1. Walk a mile in their shoes is an expression that seems to fit this situation.

      I was quite impressed with the Conversation site, too. They are providing a valuable service.

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