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. 
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. 
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.
Will
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.
U.S. Office of Personnel Management 1900 E Street NW, Washington, DC 20415 | (202) 606-1800 | TTY (202) 606-2532