Caregiving Support: Do I need a lawyer?

There are a wide variety of important documents every person should consider putting in place as they experience changes in their physical health or cognitive functioning.  Some documents require the assistance of an attorney, some don’t, and then there is a grey area in between where it is advisable to have legal input, but individuals can complete them on their own. Also of note, many attorneys lump some of these documents, Last Will and Testament, Living Will, and Health Care Proxy for example, into a package deal. This information is not meant to be seen as legal advice, but to help you to be better informed.  All families facing a serious health crisis or dementia diagnosis are strongly encouraged to see an Elder Law Attorney and receive case specific assistance.

Financial Power of Attorney

Although technically, in New Jersey, you can complete this on your own with two witnesses and a notary, it is highly advisable to utilize the services of an Elder Law Attorney for the Financial Power of Attorney (POA) document.  The “Principal,” the person creating the POA, needs to “Have Capacity” when filling it out, and having the document completed with an attorney provides some proof that the Principal was competent at the time the form was completed.  Financial POA allows the “Agent,” the person designated by the Principal, to potentially have access to all of the Principal’s possessions.  It grants access to bank accounts, the power to write checks, pay bills, buy and sell property, etc.  Your Agent does not have to be a family member, but it should be someone you trust implicitly that is capable of managing your affairs if you are ever incapacitated.  It is possible that some institutions may not accept a Financial POA document that was not completed with an attorney.

Last Will and Testament

Similar to The Financial Power of Attorney, it is not required to have the Last Will and Testament completed by a lawyer, but it is highly advisable if you have any estate to speak of, or if there is a chance of conflict among the heirs/benefactors.  It is a sad truth that dividing up an inheritance brings out the absolute worst in people.  Having the assistance of a lawyer helps to validate the competence of the “Testator,” the one creating the will.  Those who have very limited assets, if of “sound mind,” can access an online Last Will and Testament, or even hand write their wishes.  The Testator must sign the Will in the presence of two witnesses that are not designated as beneficiaries, and the witnesses must also sign it.  The Will has stronger legal validity if this is completed in the presence of a Notary.

Health Care Proxy (Sometimes called a Durable Power of Attorney for Health Care)

You do NOT need a lawyer to assist you with this form, although it is often part of a package offered by Elder Law Attorneys.  This must be completed by an individual while they are of sound mind, and it designates another individual to make health care decisions for them if they are ever unable to do so, either because of severe physical illness or mental incompetence.  This form allows the Representative to make ALL health decisions including end-of-life decisions, the right to accept or refuse treatment, and the right to withdraw or withhold life-sustaining measures.  It is essential that you notify your Representative that you have designated them for this role, and you must discuss your wishes with them so that they can make decisions based on what you would or would not want.  Choose your representative wisely.  It does not have to be a spouse or any family member.  The Representative should be someone who is willing to follow your expressed wishes regarding your care. It is important to note that the Representative only has decision making powers when you are deemed incompetent.  You can find an example of the Advance Directive for Health Care, Durable Power of Attorney for Health Care form, as well as additional information at the link below.

https://www.nj.gov/health/advancedirective/ad/forums-faqs/

Living Will

You do not need an attorney to assist with completing a Living Will, but like the Health Care Proxy Form, it is often available as part of a legal package.  The Living Will tells your family and your doctors what health care interventions you would and would not want if you are unable to make your wishes known.  Although a Living Will is a legally binding document, it can not anticipate every situation, therefore, it is seen as a road map of things to consider when decisions must be made.  In addition, there is the widely held misconception that the Living Will would be honored by EMS in a crisis.  To be clear, if there is no DNR form or POLST form present showing the doctor’s signature, it is irrelevant if the Living Will states you would not want CPR and EMS staff must initiate life sustaining measures.  You can see additional information and access the Living Will form at the link below.

https://www.nj.gov/health/advancedirective/ad/forums-faqs/

Do Not Resuscitate (DNR) and Practitioner Orders For Life-Sustaining Treatment (POLST)

These forms are NOT available from your attorney and can only be filled out with your Physician.  As stated above, if your heart stops, and 911 is called, in the absence of a signed and completed DNR or POLST form indicating Do Not Attempt Resuscitation, paramedics are required by law in New Jersey to initiate advanced life support measures which can include chest compressions, use of a defibrillator, administration of medications and intubation.  All of these interventions are appropriate for younger, healthier individuals, but can be contraindicated for someone who has a life limiting condition.  Speak to your doctor about your wishes and if appropriate, complete a POLST form on your next visit to ensure your wishes are honored.

Medicaid Applications

Medicaid is a financial program to assist those with very limited income and assets pay for health care needs.  The program varies slightly from State to State and it does not automatically transfer with you if you move to New Jersey from somewhere else in the country.  You will have to re-apply.  There are extremely stringent financial requirements and you must show proof of financial standing.  Some attorneys will complete the Medicaid application as a fee for service, averaging between $3,000-$5,000.  You do NOT, however, need a lawyer to help you with this application.  Even if you hire one, YOU will still be responsible for gathering all of the necessary documents: 5 years of bank statements, birth certificates, marriage certificates, stock and bond info, 401Ks, pension and Social Security info, deed to home, title for each car owned, etc.  The attorney does not obtain these documents for you, and this is the hardest part of completing the application.  If you are interested in obtaining more information on Medicaid eligibility, and completing an application, see the link below.

https://njfamilycare.dhs.state.nj.us/who_eligbl.aspx

Life Estates and Living Trusts

You must have an attorney assist you with these items and it is essential to see someone who specializes in Estate Planning and Eldercare.  There is a five year lookback period for a transfer of assets when applying for Medicaid, so seeking legal advice when first diagnosed with a memory impairment is the key to ensuring assets are appropriately managed.

If you would like to speak with someone to gain further clarity on any of the items listed here, please call NeuroCog Solutions and ask to make an appointment with one of our counselors.  We are here to help you navigate through this difficult time.