Legal issues
Planning
Legal issues are an important part of life planning. This section provides information
on some of the most important issues and documents you may want to consider. We've
included links for you to secure more information on particular areas of interest.
As with many issues of the law, you may want to consult with an attorney who is
familiar with your specific questions (See Finding an Elder
Law Attorney and Disability Issues).
Talking with your spouse, parents or other relatives about health care decisions
can help alleviate the stress of having to make critical decisions for a
friend or family member. But just talking about important health care and
legal decisions isn't always enough. You may want to consider writing down
your decisions or seeking advice from legal counsel. Giving copies of these
documents to responsible family members, a personal physician and other trusted
individuals is also important.
Having these discussions early can reduce the stress and clarify the decision-making
procedure in the event of a serious medical incident. Finding out about your
loved one's wishes as they relate to choices about medical intervention and
long-term care may help guide you during a time when the individual is unable
to make decisions due to incompetence or incapacity.
Power of Attorney (POA)
A power of attorney is one way of receiving legal authority to make decisions
for another person. Check with your family members to see if they have already
completed a POA. If they haven't, start talking to them about the importance of
completing one and the POA's benefits. They will want to list their specific wishes
about health care and property decisions and appoint the appropriate person to
make sure their wishes are fulfilled. It is important to have a discussion about
their issues before the documents are actually needed.
Advance Medical Directive and Durable Power of Attorney for Health Care
Until 1993, Oregon used a health care proxy called a durable power of attorney
for health care. Starting on November 3, 1993, Oregon law changed and the
advance directive became
the standard by which health care proxies were administered. The older forms
are not as comprehensive, nor do they offer as many options as the newer
advance directive forms. We suggest that you consult with an attorney if
you have not updated your forms, are still relying on the pre-1993 forms,
have moved from another state and do not have an Oregon advance directive
form, or you have any questions about health
care proxy issues.
The Oregon advance directive is a simple way to put your wishes about health
care decisions in writing. The advance directive helps guide families and
medical personnel in deciding the course of medical treatment to delay death.
It usually spells out how aggressive medical treatment should be administered.
Since the advance directive is drafted while the person is capable and competent,
it remains a primary road map for a person's wishes regarding the extent
and limits of treatment, especially in the event they are no longer able
to communicate. It appoints a health care representative who directs your
health care wishes when you are unable to do so. Your representative must
agree to serve in this role and must sign the necessary forms.
Few people enjoy talking about these critical health-related issues. But it
is important that you consider having these conversations now so that the
individual and the family are clear about the wishes of those concerned.
An excellent guide to help you through this process, as well as other publications
on this issue including a copy of the advance directive, may be obtained
through the non-profit organization Oregon
Health Decisions. They can be reached, toll-free, at 1-800-422-4805.
Family members need to spend time talking through the issues surrounding these
legal documents. Consulting with an attorney, personal physician and
even a religious or spiritual leader may help you make decisions surrounding
these issues. If your family signs one or more of these documents, make sure
that the designated parties and other trusted individuals have copies.
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Wills & trusts
Wills enable individuals to decide who gets certain personal possessions when
they die. Dying without a will, or intestate, can cause legal problems and potential
conflicts for family members. Without a will, assets could be distributed according
to the applicable law. Many estate attorneys suggest that both spouses have a
will and that they be updated to reflect changes in the estate. You may want to
consult with an attorney to discuss these issues,
and to obtain the appropriate forms to complete a will.
Trusts are created for many reasons, including to avoid probate (a court deciding
the settlement of a deceased estate), to help care for a dependent family
member, and to assist in estate and tax planning.
There are several types of trusts available, including a living trust. A living
trust can be revocable (can be changed or canceled) or irrevocable (cannot
be changed or canceled). Trusts can be an important tool, especially in the
case of a dependent or disabled child or adult. Some trusts can cause ineligibility
for Medicaid. As for all legal documents, it's best to consult with an attorney,
such as one who specializes in Medicaid law.
Guardians and conservators
The court can appoint someone to manage the personal, health care and financial
choices for someone who may be unable to do so due to incapacity or incompetence.
This can also happen if a POA was not created prior to incapacity.
The court may appoint a guardian for health care matters and a conservator
for financial matters. If no one has this legal authority prior to the incapacity,
then the court may be called on to appoint someone or to intervene and assist
the dependent person.
A guardian is appointed to make health care and personal decisions for a person
who is incapacitated through a physical or mental disability. A guardian
could have the legal right to decide where this person will live and the
medical treatment he receives. In some instances, a guardian may be given
authority, by the courts, to oversee financial matters. Additionally, the
courts could limit the scope of the guardian's authority, including the limit
over medical decisions.
A conservator is appointed to oversee the financial affairs of a person who
is unable to do so. The conservator takes control of the dependant person's
assets and must handle them, including investing, for the welfare of this
protected person. Once a conservator is appointed, a dependent person may
not liquidate his own assets or determine how the monies will be invested
without the consent of the conservator.
Family members and interested parties may petition the court to become either
a guardian or conservator. An example of this could be when an aging parent
becomes unable to take care of himself (feeding, bathing, etc.). Concerned
family members can petition the court to seek legal status to either become
their parent's legal guardian, conservator or both.
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Finding an elder law attorney
Elder law attorneys can help as your family discusses these legal issues. Many
elder law attorneys specialize in one or more areas of elder law (estate
planning, wills and trusts, disability planning, advance directives). In
Oregon, the Oregon State Bar can provide you a list of attorneys that specialize
in these specific areas. The National Academy of Elder
Law Attorneys (NAELA) can also help you find proper legal assistance
in Oregon, as well as in other states.
The National Academy of Elder Law Attorneys
sets out a series of questions you should ask before hiring a lawyer.
They are:
- How long has the attorney been in practice?
- Does the practice emphasize a particular area of law?
- How long has the attorney been in the field?
- What percentage of the practice is devoted to elder law?
- Is there a fee for the first consultation and if so, how much is it?
- Given the nature of your problem, what information should you bring
with you to the initial consultation?
Be sure to ask for a list of references. Check them out before agreeing to
retain the attorney's services.
Disability Issues
Oregon Advocacy Center (OAC) - OAC
is an independent non-profit organization which provides legal advocacy services
for people with disabilities anywhere in Oregon. OAC offers free legal assistance
and other advocacy services to individuals who are considered to have physical
or mental disabilities. OAC works only on legal problems which relate directly
to the disability.
Also see the Guardians and conservators information
on this page.
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