Attorneys can become certified elder law specialists. See Legal Services for a list of local certified specialists.
Prepaid legal service companies offer services for a monthly fee, but read the contract carefully before signing. Many plans don’t cover certain types of services or charge extra fees for those services. As with any contract, be sure to “read the fine print.”
Consider taking the practical legal steps outlined below to plan for the possibility of mental or physical incapacity. If you are helping an older person who can no longer 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, protect them and their property, and help them get advice and counsel on financial and business concerns. Legal action also can protect and empower a caregiver to act on behalf of an older person.
Before adding anyone’s name to an account or other assets, consult an attorney about possible negative consequences for both parties.
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,” or, “agent,” the authority to act on his or her behalf. The attorney-in-fact is authorized to handle banking and real estate matters, incur expenses, pay bills, and handle legal affairs for a specified period of time. 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 the power. If the principal becomes comatose or mentally incapacitated, 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.
Durable Power of Attorney
Because power of attorney expires when the principal becomes mentally incapacitated, many states, including Tennessee, have durable power of attorney, which does not expire if one subsequently becomes disabled or incapacitated. Durable power of attorney defines the circumstances under which it will take effect and outlines what the attorney-in-fact is authorized to do. (Some banks have adopted a policy that financial powers of attorney will be accepted only if the document became effective at the time it was signed.) A “springing” power of attorney (“springs” into action if you become incapacitated) requires that documentation by one or more physicians of mental incapacity be provided in order to take effect. Most banks do not accept these. Some banks have also begun to require that clients sign a power of attorney specific to that bank.
This legal device, which must be executed while the principal is still mentally competent, can prevent the need to file for a conservatorship in most cases. The attorney-in-fact must have agreed to serve. Once the principal becomes mentally incapacitated or incapable, the attorney-in-fact can be removed by petitioning the court for a conservatorship or by the attorney-in-fact agreeing to resign. The principal can revoke the durable power of attorney at any time, as long as he or she has the mental capacity to do so. The principal must inform the attorney-in-fact of the change; without that notice, the attorney-in-fact could legally continue to act for the principal.
A durable power of attorney puts a considerable amount of power in the hands of the attorney-in-fact, so 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 specific assets owned by the principal.
The authority of a power of attorney does not extend to Social Security, SSI, SSDI, the Department of Veterans Affairs (VA), or the Railroad Retirement Board (RRB).
These arrangements must be made with the Social Security Administration, the VA, or the RRB. 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 the role, the Social Security Administration will try to find the best person or assign an agency to provide one.
The Rep Payee handles Social Security-related finances. After investigating the designee, Social Security sends beneficiary checks to the Rep Payee, who must spend the funds for personal care or benefit of the beneficiary, save any excess funds, make periodic accounting to Social Security about expenditures, and inform the agency when the beneficiary moves or dies.
Tennessee law uses the term “conservatorship” for adults, and “guardianship” for minors. A conservatorship is a legal tool by which the court declares persons unable to handle their 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. If someone needs a conservator but no appropriate person is available, a Public Guardian can be appointed.
A conservator must make regular reports to the court on his or her ward’s affairs. Obtaining a conservatorship can be an expensive and lengthy process. Conservatorship will usually involve more than one attorney. Be sure your attorney has experience in filing for conservatorship.
A well-prepared will is an effective tool that provides explicit instructions for the distribution of a person’s property. A will designates a person to serve as the Personal Representative, also referred to as executor/executrix, who is responsible for carrying out instructions in the will. A will helps settle affairs quickly, with fewer legal expenses. Since a will is seldom reviewed until after a funeral, instructions about funeral arrangements should be given beforehand to the person responsible for them. These instructions, and any directives regarding body donation, should be included in a durable power of attorney for health care–not in the will.
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 critically ill patients. The Health Care Decisions Act makes it easier for individuals to express wishes concerning end-of-life decisions. Advance care forms developed by the State of Tennessee can be downloaded. Documents prepared under previous laws are still valid. However, the new forms have updated options.
An advance care plan must be signed, dated, and witnessed or notarized. Discuss your plan with your family and doctors. Give each doctor a signed copy for your medical file, and confirm that your wishes will be followed. Give a copy to the person who will make medical decisions for you in the event you are unable to do so. Review your plan yearly, and if changes are needed, append them in a letter.
Legal Aid of East Tennessee has advance care plan forms, with notaries available by appointment.
Those living in nursing and assisted living facilities have a POST (Physician’s Order for Scope of Treatment) form completed when admitted, which allows a patient (or legal representative) to outline a plan for end-of-life treatment that is much more specific to the situation than an advance care plan. Completed and signed by the physician, the POST is also available online and may be used by those still residing at home as well.
Appointment of Health Care Agent (Durable Health Care Power of Attorney)
Everyone can obtain an Appointment of Health Care Agent (previously called a durable health care power of attorney) in Tennessee that gives authority to another person(s), with his or her consent, to make health-care decisions on their 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, dated, and witnessed or notarized. Discuss the appointment with your family, primary physician, and, in detail, with the designated agent. Copies and notarization are available as noted in the section on advance care plans. Revocation or discharge of the agent may be made verbally or in writing. The documents should incorporate instructions regarding religious ceremonies, burial, and so forth.
Other Legal Issues
Property, estates, and trusts are governed by state laws and, in some cases, local ordinances. If finances do not permit hiring an attorney, Legal Aid of East Tennessee may provide, either directly or by referral to volunteer attorneys from the Knoxville Bar Association, legal advice and legal representation to low-income older adults.
For advice on landlord/tenant issues regarding leases, services, rental rights, and obligations, contact an attorney or Legal Aid of East Tennessee.
Families often have questions about their responsibility for the cost of a loved one’s health care and long-term needs. Contact an attorney, Legal Aid of East Tennessee, or the Long-Term Care Ombudsman for advice about financial responsibility and specifically, what to sign and not sign when arranging for a nursing home admission. You do not have to sign as a responsible party in order for the senior to be admitted.
Legal Handbook for Tennessee Seniors
This handbook contains practical information on a wide range of topics, including issues such as applying for Social Security benefits, long-term care considerations and estate planning, as well as completely new sections addressing online security and new health-care legislation. The handbook is available free online.