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Estate Planning for an Ailing Senior

by Jeffrey Asher, Estate Planning Expert
September 25, 2014

Question: My mom’s health is failing rapidly. How should I go about prepping for handling her property in the event she gets incapacitated?

Answer: The best thing to have in these situations is both a Health Care Proxy and a Power of Attorney.  A Health Care Proxy is a legal document signed by an individual (called, the “Principal”) that appoints another individual (called, the “Agent”) to make medical, health care, and/or long-term care decisions for the Principal if and when the Principal cannot make his or her own medical, health care, or long-term care decisions. 

A Power of Attorney is a legal document signed by an individual (called, the “Principal”) that appoints another individual (called, the “Agent”) to make financial decisions for the Principal.  That authority may be effective the moment the Power of Attorney is signed, in what is called a general Power of Attorney.  Or, it can be effective in a particular event or for a particular purpose, in what is called a limited Power of Attorney.  Or, it can be effective upon the triggering of a certain event, such as the mental incapacity of the Principal, in what is called a springing Power of Attorney. 

So, while an Agent under a Health Care Proxy cannot make health care decisions for the Principal if the Principal is able to make his or her own health care decisions, an Agent under a general Power of Attorney can make financial decisions for the Principal even if the Principal is perfectly capable of making of his or her own financial decisions.  So, it is important to get the right advice when preparing a Health Care Proxy and/or Power of Attorney.  Plus, state laws may govern what a Health Care Proxy and/or Power of Attorney look like, or how each is signed.  So, again, it is important to get the right advice from a qualified Estate Planning or Elder Law attorney to help with these forms.

But, for the parent (or other loved one) whose health is failing rapidly, a Health Care Proxy will allow the child (or other Agent) to make medical, health care, and/or long-term care decisions.  And, a Power of Attorney will allow the child (or other Agent) (it does not have to be the same child or Agent) to make financial decisions.  In the event the parent (or other loved one) does not have the requisite mental capacity to sign a Health Care Proxy or Power of Attorney, then a guardianship may be the only solution.  A guardianship is a legal process by which the parent’s (or other loved one’s) incapacity is determined and declared by the Court and a person is appointed by the Court to act as Guardian of the Person and/or the Guardian of the Property.  A guardianship is a public proceeding, which may be both time consuming and expensive.  So, for these reasons, in most situations, it is preferable to have a Health Care Proxy and/or Power of Attorney executed.

Once an individual is appointed – as Agent under the Health Care Proxy, or Agent under the Power of Attorney, or Guardian, as the case may be – that individual would be able to help the parent (or other loved one) get the medical and/or long-term care help the person may need in the event of their incapacity, but also do the necessary and appropriate asset planning to qualify for government benefits to help pay for such medical and/or long-term care help.
In all cases, and all types of planning, it is important that you get the right advice from a qualified Estate Planning or Elder Law attorney.

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Jeffrey Asher is a prominent Trusts & Estates and Elder Law attorney in Westchester County and New York City. Mr. Asher concentrates primarily in the areas of Estate Planning, Probate and Estate Administration, Elder Law, Medicaid Planning, and Special Needs Planning. Mr. Asher provides comprehensive legal services, tailored to meet your specific needs.

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