If COVID-19 has taught us anything, it is how quickly life can change and create new priorities for all of us. This is particularly true for senior adults, the most susceptible age group to the serious consequences of the pandemic.
Though life is always unpredictable, for some seniors, the pandemic may bring into sharp focus the need to have documents that express their wishes for care and the disposition of their assets.
Paul Gantner, an attorney with Amen, Gantner & Capriano LLC, specializes in elder law and has some advice for seniors and their family members who may not be prepared for what the future holds.
Paul identified five health care documents that he considers vital for seniors and family members to have readily available.
1. HIPAA Authorization Form
The Health Information Portability and Accountability Act (HIPAA) sets legal standards for keeping a person’s health information and records private. According to Paul, many people do not understand that making a call to the hospital to see how Dad is doing after his stroke will not result in the release of any information unless the caller has been expressly authorized to receive it. “The hospital can’t even confirm that Dad is in the hospital,” Paul says.
The authorization keeps approved people in the loop regarding the treatments Dad is receiving, though it does not provide them with the right to change the care plan for Dad.
Hospitals often have patients sign a document at the time of admission designating who can receive this information. According to Paul, the major advantage of this form is making family members aware of what is happening. “While you don’t want five people trying to make decisions about Dad’s care, you do want the family to know what is going on,” Paul says.
2. Healthcare Power of Attorney
This document names the person designated by the senior to carry out their wishes for medical care. The agent with this authority is allowed to receive all medical care and treatment plan information concerning the senior. He or she is charged with clearly understanding the wishes of the senior who may not be able to express his or her wishes.
3. Financial Power of Attorney
Sometimes referred to as the property power of attorney, this agent is the person designated to make decisions about banking, taxes, and hiring lawyers. Other areas would include real estate, financial investments, government benefits, trusts, and other financial elements. Again, as with the healthcare power of attorney, this position of responsibility entails performing one’s duties according to the wishes of the senior.
Paul notes there are two designations for this position: power of attorney and durable power of attorney. The durable power of attorney agent continues in his or her duties after the senior has lost the capacity to make decisions. “I don’t know why you would assign someone the power of attorney that wouldn’t be durable,” Paul says. “That’s the time when the senior and family really needs them to make decisions.”
4. Revocable Living Trust
This document allows the senior to retain control over his or her estate while making transfers of assets to beneficiaries. The senior can designate what property—investments, jewelry—goes into the trust and who will receive it. The senior becomes the trustee, often until becoming unwilling or unable to serve. The trust allows the estate to avoid probate after death.
“Depending on what the assets are and their wishes for disposition, a trust may be appropriate,” Paul says. It is advisable to seek professional legal and financial advice about this type of trust. “People may or may not benefit from this trust, depending upon what the assets are,” Paul says.
5. Advanced Health Care Directive
Often paired with a living will, the advanced health care directive lets people express their wishes for end-of-life care before a medical crisis occurs. The document spells out instructions for the agent who has the medical power of attorney for the senior as to the treatments a senior does or does not want performed under certain circumstances.
“The goal of medical caregivers is to keep the patient alive,” Paul says. “But perhaps, at a certain point, the patient would no longer want that to be the objective. The document grants authority to the agent to determine when that point is reached, based upon his or her understanding of the patient’s previously expressed wishes.”
Paul adds that this does not automatically mean a patient does not want to be resuscitated. “If resuscitation holds the possibility of an acceptable level of recovery, then it can be attempted,” he says. “However, if the prognosis after a period of time is that any recovery would not be at an acceptable level for the patient, then further lifesaving efforts would be ended or withheld.”
Paul notes that, in Missouri, feeding tubes, artificial hydration and nutrition are continued unless an advance directive states otherwise.
“It doesn’t mean the patient never wants be on a ventilator,” Paul says. “It means if there is no hope of a significant or acceptable quality of life in the recovery, then a ventilator would not be used.”
According to Paul, everyone age 18 and older should have a living will or advanced directive that states their wishes about life-sustaining efforts on their behalf.
Outside the Hospital Do-Not-Resuscitate Order
In the state of Missouri, this document directs emergency personnel entering a person’s home to not resuscitate that person if they see this document posted in the residence.
“This is for people who don’t want to go through the physical trauma of CPR and have reached the point that they no longer want to be resuscitated,” Paul says.
How COVID-19 Changed Things
Paul recalls receiving a call from a person who said her Mom was in the ICU. The family had no health care documents in place, and didn’t have any legal authority to make decisions, including the care she would receive. “So, if the woman was incapacitated, she wouldn’t understand what was happening and couldn’t authorize anything,” Paul recalls. “That meant our only option was legal guardianship and conservatorship. This is a process that can cost tens of thousands of dollars, and leaves the court in control of health care and financial decisions for the rest of the woman’s life.”
Another challenge brought on by the pandemic was that representatives of a legal firm could not visit hospitals to explain documents and get them signed in the presence of witnesses and a notary. The Missouri Chapter of the National Academy of Elder Law worked with the Missouri Governor’s office to obtain an executive order approving virtual signings. If the patient had the capacity to understand what was happening, a nurse could take an iPad or smartphone into a hospital room for the patient to receive information about what was taking place. At a remote location, witnesses and a notary could witness and confirm the patient’s signature virtually.
From March until June, Paul’s office performed consultations via Zoom video conferencing or by phone. Even today, in-person visits require masks and social distancing at the law office.
As a further aid to planning, Paul’s firm offers free webinars on subjects like wills, trusts, long-term care, estate planning and protecting assets.
The information above is for informational purposes only and should not be construed as legal advice. It is a brief overview of some of the legal and financial details and options available. There are many more options and issues to discuss and explore. Seek appropriate legal advice from a properly licensed attorney.
Explore our COVID-19 posts to find more helpful COVID-19 tips for seniors and their families.