On this page we will discuss planning for individuals facing incapacity. This is perhaps one of the most neglected, yet most important, areas of advanced planning. While most people have wills, a vast majority of us fail to do any planning for the potential of our incapacity. We relegate the concern to those with dementia or Alzheimer’s disease, or Senior Citizens; or we assume our spouse or children will be able to handle things if the need arises and our bank accounts, retirement plans, etc., will be available for use; or we assume we will have forewarning of the onset of incapacity.
However, these are all flawed assumptions, and sometimes the failure to plan for incapacity can cost families large sums of cash and resources. A cost that could have been avoided with proper planning. At Payne & Black, LLC, we have significant experience in dealing with all aspects of incapacity and planning for it. We can help you deal with the incapacity of a parent or spouse. We can help you plan to make sure your family can properly care for you. We can help you plan to properly care for a loved one. WE HAVE ANSWERS!
Planning for incapacity involves executing proper legal documents to assure that your loved ones or those people you trust have authority to make financial and health care decisions on your behalf when, due to incapacity, you cannot make those decision on your own
Asset Management Issues for the Elderly and Disabled.
An important aspect to adequately planning for the legal needs of the elderly and disabled is planning for the management of the individual’s assets should he or she become incapable of doing so. This area is often difficult, as there may be numerous competing family interests to consider. The following is a brief discussion of the common methods used in asset management
Many people own property jointly with another person or persons. In the case of joint tenants (co-owners with a right of survivorship) when one owner dies, the jointly owned property passes directly to the other(s). This arrangement has the advantages of avoiding probate, passing property quickly to the survivor(s) and making the assets available for use in the event of incapacity of one of the co-owners of the account. However, joint ownership can produce significant problems as shown in the example below.
Mary and Tom, sister and brother, jointly owned a checking account and certificates of deposit (CDs). Mary has no children and Tom has one son, Tom, Jr. When Tom died, these assets passed directly to Mary outside of probate and outside of the provisions of Tom’s will. But when Mary dies, provided she owns the checking account and CDs in her name alone, they will pass through probate and according to her will.
To avoid probate at her death, Mary could make her nephew, Tom, Jr. a joint owner of the accounts. But what about while Mary is living? Tom, Jr. could draw all of the money out of the accounts at any time without Mary’s consent. If Tom, Jr. can be trusted this is not a problem. However, if he cannot be trusted or if he has financial problems, Mary could lose everything. Moreover, the checking account and CDs could be exposed to the claims of Tom, Jr.’s creditors if he fails to pay his debts or if he faces a money judgment after losing a lawsuit.
A better way to avoid probate is a POD or Payable on Death Account.
What is a General Durable Power of Attorney?
A General Durable Power Of Attorney (or POA) is a document whereby a person, the Principal, grants to another person, the Agent, the right to have access to and manage his assets, such as cash, stocks, bonds, bank accounts, real estate, CD’s, etc. In other words, the Agent has the right to deal with Principal’s assets much the same way as he would deal with his own asset. A POA is a voluntary document and in order to execute such a document, the Principal must be competent and understand the document he is signing.
A General Durable Power Attorney is an extremely flexible document. The document can be as broad or restrictive the Principal wants. Further it can be made effective immediately, or at a time in the future, such as when someone becomes incompetent. Further, there can be one agent, or more than one Agent acting under the Power of Attorney. As a general rule, the Agent must use the power granted under the POA only for the best interest of the Principal.
It is important to note that a Power of Attorney can be abused. Therefore the Principal should have confidence in the person or persons to whom he is giving his Power of Attorney. Remember you may be incompetent when your Power of Attorney is used, and will not be able to defend yourself. At Payne & Black, LLC, we can walk you through the laws of principal and agency. We can show you how to craft a Power of Attorney that will allow your family to access and deal with your assets as needed, while minimizing the risk of someone taking advantage of you. We can also guide you in understanding if the Power of Attorney granted to you by a spouse or parent is sufficient to enable you to accomplish the Long Term Care Planning you may need to do to protect the assets of a loved one and his or her family. NOT ALL POWER OF ATTORNEYS ARE CREATED EQUAL!
At Payne & Black, LLC we believe everyone who is 18 or older needs to execute a Power of Attorney. However, for someone who is concerned about his failing mental abilities, or someone who is considering a nursing home or another long term care facility, it is extremely urgent that you consider executing a General Durable Power of Attorney as soon as possible. Nonetheless, do not execute a so called “form POA” that you get from a store, web site, or non-lawyer. There simply is no substitute for discussing this extremely important document with an experienced attorney, as there are many decisions to be made.
For example, should the agent be given the authority to make gifts? Under, South Carolina law if the POA does not authorize gifts, the agent under the Power of Attorney cannot make gifts. This sounds good, and may in fact be what a person wants, but if long term care planning becomes necessary, not having this authority can tie the hands of your spouse or children and make it difficult or impossible to implement a proper Long Term Care Plan. For example a wife may be unable to transfer the house into her name if her husband goes into a nursing home. As a result, the house may be lost to Estate Recovery.
Powers of Attorney are not simple documents. If you or a loved one needs to execute a power of attorney, has questions, or if you are uncertain as to what you can and cannot do under a Power of Attorney, we can help. CONTACT US for an appointment.
Also, Powers of Attorney are powerful documents. They can be abused. If you believe you are a loved one has been financially abused by the holder of a Power of Attorney, please contact us. We can advise you on your rights. You may also want to view our Elder Abuse and Financial Exploitation Page.
Managing Health Care Decisions.
Generally, clients are more concerned with their assets and the management of their assets than how their health care decisions will be handled. It is only after a professional makes them aware of the problems in this area that they become aware of the number of significant, often soul searching issues that must be addressed. In planning for health care decision making, there are generally three areas the professional must deal with. They are (1) life vs. death, i.e. should medical treatment be refused or withdrawn, (2) medical decisions that do not involve life and death issues, and (3) who will make the decision. The following sections will discuss the vehicles the planner has available for dealing with these issues.
The Death With Dignity Act. The South Carolina Death with Dignity Act, (SC Code ”44-77-10 through 44-77-160) provides a form of living will (referred to as a Declaration of Desire for a Natural Death) which directs the withholding of life sustaining treatment under certain circumstances. A Living will or Declaration of Desire for a Natural Death is a written statement whereby an individual gives directions to his physician and family as to what should happen near the end of his or her life with respect to the withholding of or providing of medical treatment. In general, the act provides that if the statutory form is executed by the patient, and the patient is terminal, (as defined by the act) or in a state of permanent unconsciousness (as defined by the act) life sustaining treatment may be withdrawn or withheld. For purposes of the act the following definitions apply.
a. Terminal Condition generally means “an incurable or irreversible condition that within reasonable medical judgment could cause death within a reasonably short period of time if life sustaining procedures are not used.
b. Permanent Unconsciousness means the person is in a persistent vegetative state or some other irreversible condition in which the person has no neocortical functioning, but only involuntary vegetative or primitive reflex functions controlled by the brain stem.
The Health Care Power of Attorney.
While General Powers of Attorney have been in use for some time, the Health Care Power of Attorney, or HCPOA is a relatively recent innovation that arose in response to the inflexibility of most state statutes with respect to advanced health care planning. For example, the typical living will statutes enacted by most states, including South Carolina, do not deal with consent to or refusal of treatment for medical conditions that do not involve termination of life support. This issue becomes of critical importance in the case of an incompetent or unconscious person who requires medical treatment.
As we discussed earlier, a Power of Attorney is an instrument whereby a person, referred to as the “principal,” appoints someone else as his agent in a particular matter or class of matters. The agent is referred to as an “attorney-in-fact” or “agent.” These terms are generally interchangeable. In the case of a HCPOA, the matters upon which the agent acts are health care decisions. When a HCPOA is in effect, the attorney-in-fact is placed in the shoes of the principal with respect to all health care decisions. Health care providers are bound to honor these decisions as if they were the decision of the principal himself.
South Carolina has adopted a statutory form Health Care Power of Attorney. In other words, the language of the HCPOA is set out in the statute and, except as provided in the statute, should not be altered. The advantages of the statutory form are twofold. First it provides more certainty for medical professionals who might otherwise feel compelled to question the validity of the HCPOA or the agent’s authority. Secondly, it makes the HCPOA more accessible to a much wider segment of the public as it can be disseminated from various sources and can be executed without the assistance of an attorney.
In South Carolina the statutory form HCPOA is a “springing” power of attorney. A “springing” power of attorney is one that does not become effective until sometime after its execution, typically upon the happening of some event. In the case of a HCPOA that event is the incapacity of the principal. Thus the HCPOA is not effective until the principal becomes incompetent, and it can be revoked by the principal at any time prior to his incompetence.
If the Principal has both a HCPOA and a Living Will (referred to in SC as a Declaration of Desire for a Natural Death) and a conflict between the two arises, the Living Will Controls.
Emergency Services Non-Resuscitation Order Act.
The Emergency Services Non-Resuscitation Order Act (SC Code ”44-78-10 to 44-78-65) allows an individual who has a “terminal” condition, to request (either directly or through an agent) that a health care provider issue a do not resuscitate order for emergency service. This order allows EMS personnel to provide only palliative care if they are called to the home of the individual. Palliative care means primarily pain control. For example, CPR may not be provided in the case of a heart attack.
The Adult Health Care Consent Act. Finally, if an individual does not have a health care power of attorney, is incompetent, and a medical decision is necessary, an avenue available to the family is the Adult Health Care Consent Act (SC Code ”44-66-10 to 44-66-80). This act determines who will have priority in making decisions on what medical care is to be provided for an individual who is “unable to consent.” In general the order is (1) Attorney in Fact under a Power of Attorney, (2) Spouse, (3) Adult Children, (4) Parents, and (5) Adult Siblings. The act continues for lesser degrees of kinship.
IT IS IMPORTANT TO NOTE THAT THE RIGHT TO MAKE DECISIONS UNDER THESE CODE SECTIONS MAY NOT EXTEND TO TERMINATION OR WITHHOLDING OF LIFE SUSTAINING TREATMENT WITHOUT EVIDENCE OF PATIENT DESIRE.
GUARDIANSHIP AND CONSERVATORSHIP
If an individual becomes incompetent and has no power of attorney or health care power of attorney, a Guardianship and/or Conservatorship may be necessary. In South Carolina this is done through the Probate Court and requires a hearing and notification of interested parties. At the hearing, the Judge must determine the capacity of the individual to make financial and health care decisions. A determination of incapacity will requires one or more reports from physicians and a nurse or social worker indicating the individual is incompetent.
The conservator is responsible for managing the incapacitate person’s assets and the guardian is responsible for making housing and health care decisions on behalf of the incapacitated person. Both positions can be held by the same person, and generally is. Generally the Conservator must have reasonable credit, as the court will probably require the Conservator be bonded, through an insurance company. The Conservator must account for all of the incapacitated person’s money on at least an annual basis, and possibly more frequently if required by the court. The Conservator must generally have all expenditures approved by the Court.
Guardianship and Conservatorship proceedings can be long, stressful and costly. Especially if there is any disagreement among family members. In advising our clients, we hope to avoid these proceedings by implementing an adequate power of attorney and Health Care Power of Attorney in advance of incapacity. However, sometimes that is not possible. Payne & Black, LLC has significant experience in Guardianship and Conservatorship proceedings and can effectively guide you through the process and assist you in obtaining Guardianship of a love one, or in resisting the Guardianship petition of another.
Further, if you believe a loved one’s Guardian or Conservator is not doing their job, we can take Court action on your behalf to enforce the loved one’s rights.
The foregoing information is subject to change at any time, and other more complex rules may apply. Do not rely on information you may not fully understand. If you need help in this area seek the assistance of a competent, experienced attorney. This site is not intended as legal advice.