By Assistant Prof. Dustin S. Foster
Thomas M. Cooley Law School
Elder Law is defined by the client to be served. The lawyer who practices Elder Law may handle a range of issues but has a specific type of clients – seniors. National Academy of Elder Law Attorneys, Inc. A senior or senior citizen is not clearly defined, but is typically described as an elderly individual either age 60 or older or age 65 or older. The range of issues seniors face is typically difficult to discuss, including loss of personal autonomy.
Personal autonomy is very often an issue that any individual is uncomfortable discussing. No one likes to discuss the issues of disability, loss of independence or loss of control over oneself. Often times, control of oneself is the last thing a senior has that he or she can call his or her own. If an individual wants to dictate how financial and medical decisions will be made on their behalf, when they are no longer able to make those decisions for themselves, planning should be done. Most people plan for death, but few plan for disability. If an individual wants to have control as to who will make and what decisions can be made on their behalf, when assistance is needed, two estate planning documents should be considered: (1) Durable Power of Attorney and (2) Durable Power of Attorney for Healthcare.
A Durable Power of Attorney allows an individual (‘principal?) to appoint an attorney-in-fact (‘agent?) to act for the principal in handling the principal’s financial affairs. The principal when creating this document gets to select who they want to serve as their agent and what financial powers that agent will have. The principal can provide the agent with very limited powers or very broad powers. For example the principal can provide the agent with the power to conduct banking transactions, deal with insurance and retirement benefits, contract for services, prepare and file tax returns, deal with property, pay bills, etc. Most importantly, the principal can modify or terminate this document at anytime during their lifetime.
A Durable Power of Attorney for Healthcare (a/k/a Patient Advocate Designation) allows an individual (‘Patient?) to appoint another person (‘Patient Advocate?) to exercise powers over their care, custody and medical treatment. The Patient when creating this document gets to select who they want to serve as their patient advocate and what powers that patient advocate will have. The patient can elect to provide the patient advocate a variety of powers including the power to withhold or withdraw treatment that could lead to the patient’s death, mental health treatment, the ability to hire or fire medical staff, the power to determine residency (i.e. hospice, nursing home, assisted living), access to the medical records of the patient, power to give anatomical gifts, etc. A Durable Power of Attorney for Healthcare is not effective until two doctors certify n writing that the patient is no longer able to make and convey informed medical decisions. The patient can modify or terminate this document at anytime during their lifetime.
The advantages to doing either a Durable Power of Attorney or a Durable Power of Attorney for Healthcare is: (1) You and not a court, select your agent/patient advocate; (2) It can save you the time and money of a court proceeding and (3) It will provide your family peace of mind that you have your affairs in order and that you have selected someone to care for your financial and/or medical affairs when you cannot.
May is National Elder Law Month. It is the perfect time to consult with a knowledgeable elder law attorney who can prepare either a Durable Power or Attorney or Durable Power of Attorney for Healthcare to suit your needs.
The following resources are available to seniors in Oakland County:
n General Legal Questions ? Individuals Age 60 or older
n Counsel & Advocacy Law Line ? (888) 783-8190
n Legal Hotline ? (800) 347-5297
n Free estate planning services for residents of Oakland County age 60 or older who qualify
n Estate Planning Clinic ? (248) 335-0125
Lawyer Referral
n Oakland County Lawyer Referral ? (248) 338-2100
n Michigan Attorney General – http://www.seniorbrigade.com/
n Elderlaw of Michigan – http://elderlawofmi.org/news_resources/flyers_brochures.html
n Oakland County Probate Court – http://www.oakgov.com/probate/