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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 CareUntil 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 Back to top 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. Back to top 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:
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. Back to top |
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