Power
of Attorney: What You Need
to Know
Written By:
Jeffrey A. Marshall
, CELA*
What
is a Power of Attorney?
A
Power of Attorney is a written document which gives another person (the
"agent") the authority to act for you under the terms you specify in
the document. For some
of us, a power of attorney may become the most important legal document we
ever sign.
In
the event you are ever unable to make financial or medical decisions for
yourself, a power of attorney can ensure that people of your choosing will
be able to act for you to make decisions that are consistent with your
wishes and values.
Your
power of attorney is so important that you should not rely on a simple or
standard document. It should
be carefully crafted to meet the needs of your individual situation,
preferences and goals.
Your
designated agent will only be able to act in ways that are authorized in
the document. For
example, if you want a family member to have access to your medical
information in the event of a health care crisis, your
power of attorney should grant that authority.
Or, if one of your goals is to protect your family from the
financial threat of chronic health care costs, your document should
specifically authorize your family to create an asset protection plan.
The absence of such language can seriously jeopardize the financial
security of your family in the event of long term illness.
Capacity
to Execute a Power of Attorney
For
a power of attorney to be valid, the person signing it must have adequate
intellectual capacity. A
power of attorney is not valid unless you fully understand that the
document you are signing authorizes someone else to make decisions for
you. However, in
Pennsylvania
, every adult is initially presumed
to be competent, and a diagnosis of Alzheimer's or other dementia does
not necessarily mean that it is too late to sign a power of attorney.
Critical
Issues to Cover in a Power of Attorney
Here
are some critical issues you should consider before signing your power of
attorney.
1.
Asset Protection. Do you want to authorize your agent to
protect your assets from health care costs?
If so, your agent may need to transfer ownership of your assets to
your spouse or children. This
authority must be clearly stated in the document, or your agent may not
have the ability protect your assets for your family. A standard form
power of attorney normally doesn't include this power, so you may need
to raise this issue with your lawyer.
Authorizing
someone to transfer your assets can raise a number of troublesome issues.
Who should be the recipients? Only
your wife or your husband? Your children? Should you require that your
children be treated equally? What
restrictions should be placed upon the agent?
Should the agent be authorized to make transfers to himself or
herself? And so on.
Discuss these issues carefully with your lawyer before you sign.
2.
Authorization as Health
Care Representative. A power of attorney can help ensure that you
will always receive the types of medical treatment you desire, avoid
unwanted procedures, limit your pain, and be treated with care, dignity
and respect. To achieve these
goals, your document should express your values and philosophies, at least
in general terms, and empower a trusted person to serve as health care
agent to advocate for you.
There
are a number of so-called advance health care directives that can give you
some control over the medical treatment you will receive in the event you
are not competent to speak for yourself.
These include living will declarations, powers of attorney, and
do-not-resuscitate (DNR) orders.
Living
wills are probably the best known and most widely utilized form of advance
directive. Unfortunately, many seniors fail to appreciate the significant
limitations of a living will. A living will is effective only
if you are in a terminal condition or permanently unconscious.
It is not relevant to questions about day-to-day care, placement or
the many treatment decisions that will need to be made if you if you are
lacking capacity but not terminally ill.
Health
care powers of attorney should be utilized in addition to, or in lieu of,
the living will so that your agent will be able to make a wide range of
health and personal care decisions for you whenever you are incapacitated.
Instructions as to your philosophy regarding end-of-life care and
other situations that may arise can be included in the document. Your
agent will be able to act for you even if you are not terminally ill or
permanently unconscious.
Your
agent should be someone who understands your values and who will be
willing to advocate for the application of those values to whatever
situation may arise. Your
agent can review the circumstances, consult with the health care
providers, consider the prognosis, and then apply your values as set forth
in the document, or as otherwise known to the agent, in making decisions.
Appointment
of a health care agent with broad authority to act for you has become even
more important as a result of the recent federal privacy regulations
referred to as HIPAA. These
federal rules may be used by health care providers to deny your family
access to your health information and participation in your care. The
inclusion of appropriate language in your health care power of attorney
will authorize your agent to get the information needed and make the right
informed decisions on your behalf.
3.
Avoiding Abuse. In the wrong hands, a power of attorney
can be an instrument of financial abuse and exploitation. The danger of
abuse is particularly acute when the document includes the authorization
to make transfers of your assets. While qualifying you for public benefits
may someday require divestiture of your assets, it is unlikely that you
would want the quality of your life to suffer as a result of such
planning. Your power of
attorney needs to walk the fine line between protecting the financial
security of your loved ones, while ensuring that you will always be able
to receive the care you need.
You
need to have your lawyer limit the potential for abuse by building
appropriate protections into your document.
Common protective provisions include (1) naming joint agents, (2)
requiring approval by third parties for certain actions, such as gifts,
(3) limiting the persons to whom transfers can be made, (4) requiring
equal treatment of all potential recipients of transfers, and (5)
requiring the agent to file regular accounts or other reports with third
parties.
4.
Naming Successor Agents. Just as you may someday be
unable to make financial and health care decisions, there is always a
possibility that the person you choose as your agent may become
unavailable or unwilling to serve. Make
sure you deal with this possibility by appointing more than one agent,
either jointly or as successor. Also,
consider giving your agent the power to appoint a successor or successors.
Conclusion.
The power of attorney may
someday become your most important legal document.
A well-drafted power of attorney can be of inestimable value to you
and your family. An
ill-considered document can lead to disaster.
If you underestimate the importance of this critical legal tool,
you and your family may someday pay a heavy price.
Staying
Independent Takes Work!
Written
By:
Amy
G. Bailey
,
MSW, RN, Geriatric Planning Specialist
We
make jokes about getting older, but there isn't much humor about the
reality. Things just don't
work the way they used to - we can't see as well to drive at night, we
can't digest cheeseburgers the way we could a few years ago, and we
wonder why the whole world has started to speak more and more softly.
Sometimes, we cope with it by laughing.
But when the humor is put aside, there are serious issues with
which seniors need to cope.
It was my
privilege to meet with a very articulate group of senior citizens
recently, and we talked about loss. Someone
in the group said, "loss becomes your companion."
Sometimes the loss is a spouse or friend, but not always.
The group agreed that one of the biggest and most painful of losses
was that of losing one's independence.
Another painful loss was that of losing one's home.
The good news
is that it is often possible to prevent or delay the loss, but only if you
are willing to be an active participant in the process.
It is important that you be willing to examine your lifestyle and
surroundings, and make the changes needed to protect your independence and
your ability to live wherever you want to live. It is equally important
that you NOT accept pain and other symptoms as a normal part of getting
older. There are changes that
are a normal part of aging. These
include such things as changes in vision, (referred to as presbyopia) or a
slower metabolism. But normal
aging does not include such things as significant pain, chronic
indigestion, or vertigo. These may all be signs of serious but treatable
illnesses, and you should bring these to your doctor's attention.
Without the
willingness to be an active participant in your health care, you may make
mistakes that could cost you your health and independence.
You might ignore a symptom until the problem is serious.
You might fail to make your environment safer, and suffer a bad
fall. (For a detailed look,
please check out The
Top Ten Health Care Mistakes Made By The Elderly.)
However, it is possible to take charge.
First, be willing to admit that things aren't the same at 75 as
they were at 55. Second, be
willing to make some changes. Maybe
that means wearing a hearing aid or having a ramp built.
It might mean changing your diet or increasing your exercise.
It might mean admitting it is time to retire or go back to work.
Third, have courage - courage to ask the doctor to explain again,
courage to talk to your physician about your symptoms, courage to use a
cane or walker. Finally,
value yourself enough to insist upon the best that life has to offer you.
You know you are worth it!
Additional
Drug Savings for Low-Income Beneficiaries
Written
by:
Jeffrey
A. Marshall
,
CELA* and Geriatric Planning Specialist, Lisa Barner
The
Medicare approved discount cards that will soon be available are intended
to offer price breaks of 10 percent to 15 percent, and perhaps as much as
25 percent on more than 200 classes of medicines.
But most older Americans expecting substantial savings on the cost
of their medications may well be disappointed.
Due to the complexities and limitations of the cards, most of those
eligible are not expected to apply.
The
Medicare discount cards will, however, offer significant help in 2004 and
2005 to those with very low incomes who are eligible for the $600 annual
allowance. If your income is less than $12,569 ($16,862 for a married
couple), you may get a credit of $600 to help pay for prescription drug
costs. In addition, you will
not have to pay a fee for your discount card.
While you have money on your card, you will have to pay a low
co-pay (5% to 10%) each time you use it.
If you use the entire transitional assistance $600 credit, the card
can still be used for discounts.
Low
income beneficiaries may have the potential to save even more because
several pharmaceutical manufacturers intend to offer savings programs that
wrap around the Medicare approved cards.
You may qualify for some of these additional savings programs even
if your income is over the limits noted above for the transitional
assistance.
Merck
& Co. announced that the company will provide its medicines free
for low income Medicare beneficiaries who exhaust their $600 transitional
assistance allowance. In
addition, Merck intends to participate in Medicare endorsed drug discount
cards by offering discounts on Merck medicines for eligible Medicare
beneficiaries.
Eli
Lilly will begin offering all of its medications for $12 per month to
the Medicare beneficiaries with lower incomes.
Lilly will not require low income Medicare beneficiaries to exhaust
the $600 annual subsidy before participating in this program.
The discount is available to beneficiaries with annual incomes at
or less than 200% of the federal poverty level, which is much higher than
the traditional assistance levels. 200%
of the federal poverty level is $18,620 for singles and $24,980 for
married couples. Enrollment for Lilly's program will begin May 3 and
benefits will take effect June 1.
Pfizer
for Living Share Card Program will offer most Pfizer drugs for $15 for
a 30 day supply. (You must meet certain requirements to be eligible for
this card including an income limit of $18,000 a year ($24,000 for
couples).
Together
RX provides savings of 20% to 40% on over 155 FDA approved medicines
from multiple pharmaceutical companies including Abbott Laboratories,
Astra Zeneca, Aventis, Bristol-Myers Squibb Company, Glaxo Smith Kline,
Janssen Pharmaceutica, Novartis, and Ortho-McNeil Pharmaceutical, Inc.
You can also save 15% on generic medications at over 4,000
participating pharmacies. There
is no cost to enroll for the card. You
can apply at http://www.togetherrx.com/
Attorney
Marshall Quoted in
Wilkes-Barre
Times
Leader
For
John and Adeline DeStefano, deciding to put daughter Cindy's name on
their bank account became the most costly decision they ever made.
Rather than naming Cindy as Power of Attorney so she could handle
her parent's finances in the event they became incapacitated, the
DeStefano's added her name to their checking account. Unfortunately, now
that Cindy is going through a divorce, the DeStefano's accounts have
been drained from over $77,000 to a mere $22.99 to payback Cindy and her
soon-to-be ex-husband's loans.
Attorney Marshall was contacted by the paper to offer comment on
the situation. His response
and the entire story can be found on the Wilkes-Barre Times Leader website
at http://www.timesleader.com/mld/timesleader/business/8498547.htm.
Hurry!
There is still time to register!
8th
Annual Marshall & Associates Professional Update Planned
Have
you signed-up for our
8th Annual Update that will take place from
8:00AM-12:00PM
, May 6th, at the
Radisson in
Williamsport
and on May 7th, at the
Woodlands in
Wilkes-Barre
?
This will be
your opportunity to get the latest information on changes that are of
critical importance to seniors and to those of us who provide services to
them. You will learn about the new Medicare discount drug cards and
transitional assistance subsidies. Representatives
from the Department of Aging, the Alzheimer's Association, the Assisted
Living industry, and other experts will detail the many programs and
issues involved in the great expansion of home and community based care
that is taking place in
Pennsylvania
.
The Update is
FREE and intended for professionals in the elder care and elder services
network such as individuals working in nursing homes, hospitals, assisted
living and personal care facilities, area agencies on aging, and county
assistance offices. It should
also be of great interest to social workers, financial planners,
accountants, lawyers, and trust officers who work with seniors too.
To register, call 1-800-401-4552.
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Does
Your Club Or Organization Need A Speaker?
If
you are interested in having an attorney or geriatric planning specialist
from
The
Elder Law Firm of Marshall & Associates speak to your group, or at an
upcoming event, please contact
our
Public Education Coordinator, Melissa
Bottorf
at
mbottorf@paelderlaw.com
or 1-800-401-4552
*Attorney
Marshall
is
certified as an Elder Law Attorney by the National Elder Law Foundation
under authorization from the Pennsylvania Supreme Court
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Marshall & Associates www.paelderlaw.com
