Legal Services
Attorneys can become certified elder law specialists by passing a rigorous national examination that covers public benefits and aging-related law, and by meeting character and experience standards. The Knoxville Bar Association can provide names of local certified specialists. NAELA, the National Academy of Elder Law Attorneys, can provide, for a fee, regional directories of elder law attorneys. Call (520) 881-4005. Members of NAELA are listed on the Internet at www.naela.org. Members with the special certification in elder law are designated with "CELA" after their names. Elder law attorneys who are members of the Council of Advanced Practitioner—considered leaders in the practice—are listed at www.naelacap.org.
Before you add someone else’s name to your bank account or other assets, consult an attorney about the possible negative consequences for both parties.
Consider taking the practical legal steps outlined below to plan ahead for the possibility of mental or physical incapacity. If you are helping an older person who can no longer appropriately manage his or her own affairs, legal steps need to be taken as soon as possible. Even persons diagnosed with dementia may still have the capacity to execute legal documents. The purpose of legal action is to safeguard the rights and interests of the older person, to protect them and their property, and to obtain advice and counsel for them on financial and business concerns. Legal action can also protect and empower a caregiver to act on behalf of an older person.
1. Power of Attorney
Power of attorney is a legal step that permits one individual, known as the “principal,” to give to another person, called the “attorney-in-fact,” the authority to act on his or her behalf. The attorney-in-fact is authorized to handle banking and real estate, incur expenses, pay bills, and handle a wide variety of legal affairs for a specified period of time. The power of attorney can continue indefinitely during the lifetime of the principal as long as that person is competent and capable of granting or revoking a power of attorney. If the principal becomes comatose or mentally incompetent, the power of attorney automatically expires just as it would if the principal died. Therefore, this power of attorney may expire just when it is most needed.
2. Durable Power of Attorney
Because the power of attorney ceases to be effective when the principal becomes incompetent or incapable, many states, including Tennessee, have authorized a legal device called a durable power of attorney that takes effect when the principal becomes incompetent or unable to handle his or her own affairs. The durable power of attorney defines the circumstances under which it will take effect and lists what it authorizes the attorney-in-fact to do. (It should be noted that some banks have recently adopted the policy that financial powers of attorney will be accepted by the bank only if the document is effective upon signing, not later, upon a proving of mental incapacity.) This legal device, which must be executed while the principal is still mentally competent, can prevent the necessity of filing for a conservatorship in most cases. The attorney-in-fact must have agreed to serve. Once the principal is incompetent or incapable, the attorney-in-fact can be removed only by petitioning the court for a conservatorship. The principal can revoke (cancel) the durable power of attorney at any time as long as he or she is competent. The principal must inform the attorney-in-fact that the power is canceled; without that notice, the attorney-in-fact could legally continue to act for the principal.
Laws governing powers of attorney vary from state to state, and, since a durable power of attorney puts a considerable amount of power in the hands of the attorney-in-fact, the document should be drawn up by a lawyer licensed to practice in the state in which the principal resides. Financial powers of attorney should be tailored to the specific assets owned by the principal.
3. Representative Payee
The authority of a power of attorney does not extend to Social Security or SSI. These arrangements must be made with the Social Security Administration. If you are helping an older person who can no longer manage his or her own financial affairs, report this to Social Security. You can request an appointment as Representative Payee. If a person needs a “Rep Payee” and there is no obvious person to take on the role, the Social Security Administration will try to find the best person to do it or will assign them to an agency that will provide a Rep Payee.
The Rep Payee handles Social Security-related finances. After investigating, Social Security will send the beneficiary’s checks to the Rep Payee. The Rep Payee must spend the funds for the personal care or benefit of the beneficiary, saving any excess funds; make periodic accounting to Social Security about how the money has been spent; and inform the agency when the beneficiary moves or dies.
4. Conservatorship
Tennessee law uses the term “conservatorship” for adults, and “guardianship” for minors. A conservatorship is a legal mechanism by which the court declares a person unable to handle his or her own affairs and, therefore, appoints a conservator. The court can transfer to the conservator the responsibility for making decisions about any or all of the following: financial affairs, living arrangements, and medical care. For someone who needs a conservator but no appropriate person is available to serve in that capacity, the Public Guardian (see page 121) can be appointed.
A conservator must make regular reports to the court on his or her ward’s affairs. Obtaining a conservatorship can be expensive, involve more than one attorney, and, if contested, take many months. Check to be sure your attorney has experience in filing for conservatorship.
5. Wills
A well-prepared will is an effective tool that provides explicit instructions for the distribution of a person’s property and, if appropriate, how that property is to be used after a person dies. A will designates a person to serve as the Personal Representative (formerly executor) responsible for carrying out the instructions of the will. A will makes it easier to settle affairs quickly and with fewer legal expenses. Since a will is seldom consulted until after the funeral, instructions about burial or cremation should be given to whomever will be responsible for making funeral arrangements. These instructions, and those regarding body donation, should be included in a durable power of attorney.
6. Advance Care Plans (Living Wills)
Public attention is increasingly focused on “right-to-die” issues as medical technology makes it possible to sustain some vestige of life in dying patients. Although older laws related to living wills and powers of attorney for health care are still valid, the Health Care Decisions Act, enacted in Tennessee in 2004, was intended to make it easier for individuals to express their wishes concerning end-of-life decisions. New advance care forms have been developed by the State of Tennessee and can be downloaded from the Internet. Documents prepared under the old laws are still valid. However, the new forms may be more appealing to some people.
An advance care plan must be signed, dated, and witnessed or notarized. You should discuss your advance care plan with your family and doctors. Give each of your doctors a signed copy to be added to your medical file, and confirm with the physician that he or she will honor such a document. Give a copy to the person who will make medical decisions for you in the event that you are unable to do so. Review your advance care plan yearly to make any needed changes. You may append a letter spelling out your specific wishes.
Senior Citizens Information & Referral Service and Legal Aid of East Tennessee have advance care plan forms and notaries available.
7. Appointment of Health Care Agent (Durable Health Care Power of Attorney)
You can also obtain an Appointment of Health Care Agent (previously called a durable health care power of attorney) in Tennessee. Under it, you can give authority to another person(s), with his or her consent, to make health-care decisions on your behalf. This includes consent, refusal to consent, and withdrawal of consent to maintain any care, treatment, service, or procedure, and to diagnose or treat a physical or mental condition. It must be signed, witnessed, and notarized. You should discuss it with your family, primary physician, and, in detail, with your chosen attorney(s)-in-fact. Copies and notarization are available as above in the section on advance care plans. Revocation or discharge of a physician may be made either orally or in writing. These documents should be tailored to the individual to incorporate particular desires and preferences regarding religious ceremonies, burial, and so forth.
8. Other Legal Issues
A. Issues concerning property, estates, and trusts are governed by state laws and, in some cases, local ordinances. If finances do not permit hiring a private attorney, Legal Aid of East Tennessee provides, either directly or by referral to volunteer attorneys from the Knoxville Bar Association, both legal advice and legal representation in court to low-income elderly persons.
B. To get advice on tenant/landlord issues regarding leases, services, rental rights, and obligations, contact your attorney or Legal Aid of East Tennessee.
C. Families often have questions about their responsibility for the cost of an older person’s health care and long-term care. They may need to seek legal advice about what their financial obligations are, if any. See your attorney or make an appointment with a Legal Aid of East Tennessee representative for advice about responsibility for the costs of nursing home care and, specifically, about what to sign and not sign when arranging for a relative to enter a nursing home. You do not have to sign as a responsible party in order for the elder to be admitted.
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