Before sharing important legal advice
about how people can maintain
control of their finances, health care
and other personal matters, the
speaker offered a simple, easy-tounderstand
piece of advice: “Don’t
wait; stuff happens.”
“Your options and choices get much
more limited in a crisis,” said Richard A.
Courtney, a principal at Courtney Elder
Law Associates PLLC, addressing legal
planning for long-term care at AFA’s
Educating America Tour in Jackson, MS,
earlier in the year.
“When you plan ahead, there are
more options, and proactive planning is
much less expensive.”
Courtney mentioned three things
people don’t like about aging: change,
conflict and loss of control. Legal
planning aims to avoid these things as
much as possible, he says.
“We’re not going to avoid change
but we’re going to deal with it. We’ll
address situations to avoid conflict
and loss of control at different life
transition points.” Planning ahead will
make finances secure and protect the
person’s assets.
“Lots of people, like adult children,
come in and say, ‘We want to try to save
Mama’s assets from the nursing home.’
Sometimes I interpret that as, ‘We
want to save our inheritance from the
nursing home.’”
Courtney makes it clear that only the
mother, if she is mentally sound at the
time, has control of her assets.
“She’s my client — and I can only
have one. I’m not here to worry about who
inherits what; my responsibility is making
sure she has what she needs for a good
quality of life. That’s what I’m supposed to
do as her lawyer.”
Power of Attorney
For decision-making about finances the
Power or Attorney “is probably the most
important document to have properly
done when you’re planning for someone
who’s got dementia, gets incapacitated
or maybe is headed there. You need your
Power of Attorney in place.”
Courtney says this document
doesn’t mean you are giving up your
rights to make decisions about your
property, money and other assets.
“It means if I can’t do it, I’ve given
someone else the legal authority to
do it for me. It’s not a cookie-cutter
document. We can also put in a safeguard
provision that says my agent shall
have no authority to make loans or gifts
from my assets to other people. It’s a
personalized document for what you
want the rules to be if somebody steps
in to manage assets for you.”
Courtney said the mother, for
instance, can designate the child to
speak for her in a Power of Attorney
legal document. Otherwise, the mother
retains power over her assets, even if she
later develops a memory loss condition,
in which case family members will
need to go to court for guardianship or
conservatorship.
A Will
Courtney describes a Will as “who gets
my stuff ” when I die.
“I can give it outright or put it in
a trust for them so somebody else will
be the trustee and manage it for them
if I don’t think they can manage it
themselves. It won’t be subject to their
divorce or their debts. It’s not in their
ownership.”
Advanced Healthcare Directive
One of the major concerns Courtney
hears from older clients is who
will make health care decisions for
them if they are no longer able. He
recommends the Advanced Healthcare
Directive (AHCD), which allows the
person to make clear all their health
care decisions and prevents the adult
children from hiring a different lawyer
to make changes.
“You can indicate your choices on
the form itself,” he said. If no surrogate
has been appointed to speak for an
incapacitated person, medical decisions
can be made by the following, in this
order: a spouse if they are not legally
separated, an adult child or majority
of children, parent, sibling or a person
who shows concern and is willing to
make decisions based on the person’s
values. In the latter case, the nursing
home or hospital may require written
evidence that the person “is one of these
types of people.”
Courtney said his firm publishes the
free Essential Elder Law and Dementia
Planning Guide, which can be requested
at www.elderlawms.com or by calling
601-987-3000.
More to explore:
Fundamentals of Legal Planning
What are Advance Directives?
Creating a Long-Term Plan Team
Guardianship & Conservatorships
Undue Influence: An Issue for Everyone