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The Handbook of Elder Care Resources for the Federal Workplace

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Legal Considerations

Legal Considerations

When an aging family member suddenly needs help with daily living tasks or must enter a nursing home, the emotions of such a change can interfere with a family`s ability to make decisions. Dayplanner The decision making process can seem overwhelming, particularly if legal concerns are involved. While dealing with your parent`s legal concerns may seem difficult, you need not feel overburdened. The best defense against confusion and uncertainty in coping with legal issues is to prepare in advance of change. The information in this section offers some suggestions for preparing you and your parents for the day they may need your assistance in handling their legal affairs. "Getting Your Affairs in Order" provides an easy process for aging parents to organize their legal affairs should they need assistance later on. The second part of this section defines legal terms that relate to the aging field. Regardless of your circumstances, everyone should read this section and become familiar with the legal issues that affect many aging adults and their children.

Getting Your Affairs in Order

Relatives and friends sometimes must help older people manage their legal or financial affairs temporarily or even gradually assume these responsibilities. File Often the person who provides care has little knowledge of vital information and records. If papers are in order, the task is much simpler.

Although each situation is different, the following suggestions can help most people begin creating a financial and personal records file.

Personal Records File

A personal records file should include the following information:

  • Full legal name;
  • Social Security number;
  • Legal residence;
  • Date and place of birth;
  • Names and addresses of spouse and children (or location of death certificates if any are deceased);
  • Location of will or trust;
  • Location of birth certificate and certificates of marriage, divorce, and citizenship;
  • List of employers and dates of employment;
  • Education and military records;
  • Religious affiliation, name of church or synagogue, and names of clergy (if desired);
  • Memberships in organizations and awards received;
  • Names and addresses of close friends, relatives, doctors, and lawyers or financial advisors; and
  • Requests, preferences, or prearrangement for burial.

A family member or friend should know the location of this personal records file and the location of all important papers and  documents, although it is not necessary to reveal the contents of wills or trusts.

Financial Records File

In making a financial records file, list information about insurance policies, bank accounts, deeds, investments, and other valuables, using this outline:

  • Sources of income and assets (pension funds, interest income, etc.);
  • Social Security and Medicare information;
  • Investment income (stocks, bonds, and property);
  • Insurance information (life, health, and property), with policy numbers;
  • Bank accounts (checking, savings, and credit union);
  • Location of safe deposit boxes;
  • Copy of most recent income tax return;
  • Liabilities--what is owed to whom and when payments are due;
  • Mortgages and debts -- how and when paid;
  • Credit card and charge account names and numbers;
  • Property taxes; and
  • Location of personal items such as jewelry or family treasures.

Having this information available can help you or a family member plan for any change in later years--retirements, a move, a death in the family--and can help you or a family member make wise decisions.

Legal Definitions

Many communities offer legal services. For those elderly who are unable to manage their own affairs appropriately, legal and/or protective services may be needed. Such services are designed to safeguard the rights and interests of older persons, to protect them from harm, to protect the property of older persons, and to provide advice and counsel to older persons and their families in dealing with financial and business concerns. Older persons and their families should become familiar with the following legal terms.

Power of Attorney

This is a legal device which permits one individual (the Principal) to give to another person (the attorney-in-fact) the authority to act on his or her behalf. The person with power of attorney is then authorized to handle banking and real estate, pay bills, incur expenses, and handle a wide variety of legal affairs for a specific period of time. This can continue indefinitely as long as the person granting power of attorney remains competent and is capable of granting power of attorney. This kind of power of attorney expires when the Principal becomes comatose, mentally incompetent, or dies.

Durable Power of Attorney

Most people feel more secure knowing that, in the event of incapacity, a trusted person and not the courts will make decisions and carry out their wishes. A Durable Power of Attorney gives a specified person this right despite the physical or mental incompetence of the elder. It terminates only upon the death of the grantor (Principal) or if revoked by a legally appointed guardian or by the grantor if he or she remains competent.

Guardianship or Conservatorship

A guardianship or conservatorship, arranged through an attorney, blocks a person from acting on his or her own behalf. This arrangement is useful when a person is incapable of managing financial and/or personal affairs, or does not know that he or she is managing poorly, and this incapability poses a major threat to his or her well-being. All guardianships must be approved by a court and actions taken by a guardian are overseen by the court.

Social Security Representative

In the event a parent or older person cannot sign a Social Security check, the Social Security office will appoint a person, institution, or community association as representative payee. The name on the Social Security check is changed from the direct beneficiary`s to the payee`s, and the payee is then responsible for distributing the money on behalf of the beneficiary. Social Security checks can also be directly deposited in most situations.


A will is a legal declaration of how the deceased wants his or her money, property, and other possessions disposed of after death. A will also can be used to determine guardianship of minor children and to set up trusts for heirs who may have an inadequate knowledge of how to manage inherited money or property.

Without a doubt, every person with property of any value should have a will. However, many people delay thinking about death and then die intestate, that is, the State distributes their estate according to the laws of the State. When drawing up a will, a parent and older person should make a list of his or her resources and clarify and write down his or her wishes. The parent and older person must choose an executor and witness to the will. The parent and older person also has the responsibility to review it periodically, to keep it up-to-date, and to see that it is stored in a safe place. You should know where your parent or older person`s will is kept.

Living Will

A living will is a document that allows people to state, while they are still able, their wishes regarding the use of extraordinary measures or procedures to keep them alive when it is evident that they are dying. The living will may also appoint someone else (a relative, friend or attorney) to direct health care if the person signing the living will is unable to do so.

In most cases, people who sign living wills want to be certain that they will not receive unwanted or unwarranted treatment if death is near and they have no reasonable expectation of recovering. Others may want to make clear that they want to be at home when death is imminent, or that they want to donate their organs after death. Currently, 38 States and the District of Columbia have recognized the Living Will as legally binding under most circumstances.

Legal Aid

There are a few programs that will provide low-cost legal services to a parent or older adult. Legal aid offices are set up to provide low income individuals with legal services if they meet eligibility guidelines. A parent or older person can sometimes receive help with government forms, tax forms, wills, etc., from retired attorneys, volunteers from the Bar Association, or paralegals who are supervised by an attorney. Some States have toll free telephone numbers that a parent or older person can call and talk with an attorney. Contact your local AAA or senior center for further information on these programs.

These definitions were borrowed from The Partnership Group, Inc. and are reprinted here with their permission.

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