Planning for the end of your own life or caring for an aging loved one is complicated and emotionally fraught. And while it can’t be resolved by a one-size-fits-all checklist, such a list is useful, as it can get you thinking about all that goes into developing an elder care plan.
Elder law practice requires a holistic approach to end of life care and estate planning. It isn’t just about what happens to property once a person is gone; it is also, critically, about what happens to the person and their property while that person is still living. David Parker, a White Plains, New York elder law attorney with over 25 years of experience, emphasizes that it goes beyond who gets what in a will. “Elder law is how you deal with not only your assets but also yourself as a person when you’re older and need assistance,” he says.
With that in mind, the list below is designed to capture the high-level topics. It includes not only items like a living will and a healthcare proxy, which are legal documents, but also reminders to consider such matters as the disposition of household items if a person has to move or instructions for organ donation. And every plan should include clear instructions on where vital documents are kept, who gets and keeps copies, how those documents will be periodically reviewed and updated if circumstances change, and name and contact information of the client’s attorney.
Each person’s situation and preferences will be different, but everyone should have a plan that works for them and their family.
- Advance directive/living will
A living will lets healthcare providers know your wishes in such matters as life-support versus palliative care if you are incapacitated or otherwise unable to communicate those decisions.
- Durable healthcare power of attorney
Just one of a number of different types of powers of attorney, the durable healthcare power of attorney gives someone else the ability to make healthcare decisions on your behalf. “Durable” means that this document remains in effect even if the signer becomes legally incompetent. This power of attorney should also allow representatives to speak to insurance companies on behalf of the insured.
- Long-term care insurance policy
A copy of any long-term care policy should be reviewed and kept in a readily accessible place.
- Healthcare proxy
Healthcare proxy forms facilitate the exchange of information between providers and agents of the patient during those times when the patient is unable to provide permission. As Brittni Sullivan, an attorney at Burner Law Group, wrote for Avvo, “In our Elder Law practice, we often times see our clients experiencing difficulty in getting health care information regarding a loved one.” A well-drafted document will solve this problem including giving the patient’s agent the right to hire and fire medical professionals.
- HIPAA release form
This form is the legal mechanism to waive the federal Health Insurance Portability and Accountability Act for named individuals in specified circumstances.
- Medicare authorization form
Similar to the HIPAA release form and the healthcare proxy, this form addresses communication issues for patients who cannot handle the Medicare process themselves. The authorization form, available on the Medicare website, allows someone to work directly with the insurer on another person’s behalf.
- Insurance/Medicare/Medicaid information
All documents related to insurance, coverage, any premiums, and explanation of benefits should be gathered, reviewed, and readily available.
- VA Medical Benefits (if applicable)
Veterans can qualify for a variety of medical benefits earned by their service. The VA provides assistance through its website for veterans and their families and caregivers.
- Bank accounts
Compile a comprehensive list of all bank accounts, account numbers, signatories, and balances.
- Securities holdings
Stocks, bonds, and other securities need to be accounted for and account numbers and balances recorded.
Retirement accounts often make up the bulk of an older person’s financial holdings. Just as with banks accounts, all relevant information should be reviewed and recorded.
- Legal settlements
Any outstanding legal settlements due (or owed) should be outlined and documented.
- Real estate
Deeds and tax records should be reviewed to develop a complete financial picture. Location of all deeds (or mortgages or liens on property) should be recorded.
- Tax returns
The IRS requires that tax records be retained for up to seven years, depending on the individual taxpayer’s situation.
- Life insurance policy
Life insurance policies, along with other accounts with beneficiaries, should be periodically reviewed to ensure that it’s up to date.
- Safe deposit box
Record the location of the box, the signatories allowed to access the box, and, if applicable, the box’s contents.
- Social Security and other government benefits
In addition to Social Security and any disability benefits the primary account holder is entitled to or receives, caretakers might be eligible to receive government benefits themselves.
- Credit Cards
Outstanding balances are important, but things like rewards, points, and other perks are too.
- Household items
The New York Times reported in 2017 on the growing issue of household items of aging parents. The adult children of baby boomers might not want their parents’ beloved Chippendale breakfront or French provincial bedroom set, so it’s better to have those conversations sooner rather than later.
- Family heirlooms
Most families have an heirloom or two or cherished pictures that are meaningful. Thoughtfully addressing how and when those items will be passed along (and to whom) is not always easy but can avoid much unpleasant later.
A plan for who will care for pets when the owner is no longer able to do so can provide priceless peace of mind.
Children of aging parents often face the dilemma of taking the keys away. What will happen to any vehicle once that happens? And how will Mom or Dad get from place to place?
Everyone should have a will. In the case of a complicated or large estate, that will should be part of a larger estate plan to make sure that the decedent’s wishes are carried out.
Often, assets will be placed in trust. There are many types of trusts with various responsibilities for trustees and beneficiaries. A qualified attorney can advise on the best route for an individual’s situation and help review and update any trust documents as necessary.
- Powers of attorney
As discussed above, powers of attorney are vital documents designed to help make the transactional business of living and dying as efficient as possible. But there are many kinds of powers of attorney, providing solutions for different situations. These documents are also governed by state law.
“That’s why you need a power of attorney drafted by an elder law attorney who is going to have a lot more scenarios packed into that power of attorney to give you powers to do things that come up,” Parker says.
- Vital documents
These documents should be gathered and maintained in a secure and easy-to-access location, like a safe deposit box:
- Birth certificate
- Marriage license
- Citizenship/naturalization documents
- Military separation papers
- Involvement of children/heirs
Ideally, all of a person’s adult children are involved in making decisions about the elder care plan. Parker works hard in his practice to address any intra-family problems during the planning stage. “It should be all or none,” he says about the children’s participation. “Because there’s always a lot of sibling dynamics.” Additionally, special care should be paid if there is a child with a disability. An attorney with experience in long-term planning for disabled children should be consulted to avoid any estate or gifting decisions that might jeopardize that child’s own disability claims and insurance or care options.
- Funeral arrangements
Knowing a person’s wishes can alleviate some of the stress of planning any services or celebration of life memorials following a loss.
- Burial deeds/cremation plans
Is there a burial plot already bought and paid for? If so, where is the deed? Is there a plan for cremation? This information should be gathered and organized before the person passes away.
- Organ donation
Healthcare professionals can assist families in donating their loved one’s organs, but those families need to know the deceased’s wishes ahead of time.
No one says that planning for end-of-life – yours or a loved one’s – is a simple or enjoyable task. But preparing for the future, instead of just reacting to changing and often overwhelming circumstances, will always be a better idea.
As Benjamin Franklin wrote when suggesting that Philadelphia should create a standing fire department, “An ounce of prevention is worth a pound of cure.”