Presenting a live 90-minute webinar with interactive Q&A Elder Care Incapacity Planning: Advanced Directives and POLSTS, POAs, Controversial End-of-Life Healthcare Decisions WEDNESDAY, SEPTEMBER 20, 2017 1pm Eastern | 12pm Central | 11am Mountain | 10am Pacific Today’s faculty features: Paul Black, Partner, Georgia Elder Law of Brannon Black , Atlanta Misty Clark Vantrease, Esq., Kentucky ElderLaw , Louisville, Ky. The audio portion of the conference may be accessed via the telephone or by using your computer's speakers. Please refer to the instructions emailed to registrants for additional information. If you have any questions, please contact Customer Service at 1-800-926-7926 ext. 10 .
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Elder Care Incapacity Planning: Advanced Directives and POLSTS, POAs, Controversial End-of-Life Healthcare Decisions September 20, 2017
Presenters Misty Vantrease Paul Black Kentucky Elderlaw, PLLC Georgia Elder Law Louisville, Kentucky of Brannon Black, LLC misty@kyelderlaw.com paul@georgia-elderlaw.com (502) 581-1111 (770) 854-0688
Presentation Topics What are the key factors to When should clients consider consider when helping a client the use of POLSTs, and how execute a Power of Attorney? effective are these documents? How can solidly drafted Advanced Directives facilitate How are state legislatures and the implementation of a well- courts addressing controversial designed long-term care plan? topics in healthcare decision- making such as voluntarily stopping eating & drinking (VSED) and physician-assisted suicide? What about speech by groups who support a patient taking his or her own life? 7
Durable Powers of Attorney • Legal basis for a Power of Attorney is determined by state law. • Some states (see map) have adopted the Uniform Power of Attorney Act (UPOAA). • Other states-Kentucky, for example- have not and the law is a simple statute that is in the process of being reformed. 8
Durable Powers of Attorney: Basic Terminology • Signer - Principal • Holder - Agent or Attorney-in-Fact - but generally just called the power of attorney • Durable - Still effective after the loss of capacity. • In the world of elder law, a POA would be useless without durability statement! 9
Durable Power of Attorney • A Durable Power of Attorney allows the Principal’s Attorney -in-fact to handle his financial affairs • “Durable” means that it stays in effect even if you become incompetent – Example of Statutory language: "This power of attorney shall not be affected by subsequent disability or incapacity of the principal, or lapse of time" 10
Durable Powers of Attorney: Death of Principal; Reasons to Record • The Power of Attorney ends at the moment of death. No one can act on behalf of the deceased until an executor/administrator/personal representative is appointed. • If you want to know if the document presented is the most recent Power of Attorney, check the county clerk’s (deed recorder’s) Web site. The Power of Attorney may be filed there, but it is not required. 11
Durable Power of Attorney: Immediate vs. Springing POAs • Immediate – goes into effect as soon as it is signed. • Springing – “springs” into effect at some point in the future – Controlled by document language – May specify the conditions making it effective and the person(s) or institution responsible for making the determination – If it does not specify, it is effective upon a written determination by 2 licensed physicians that the principal is “unable, by reason of physical or mental disability, to prudently manage or care for the principal's person or property, which written determination shall be conclusive proof of the attorney in fact's power to act pursuant to the power of attorney.” • If it is springing, make sure it has sprung into effect before someone tries to use it! 12
Durable Powers of Attorney: Drafting Tips • Tip: One person should be named as the Attorney-in-Fact, but also name an alternate – someone in case the first choice is unable or unwilling to serve. • Tip: The document should state that copies are as good as originals. • Tip: The document should allow: changes in insurance beneficiaries, retirement plans and so on, in addition to the more common use of handling bank accounts 13
Durable Power of Attorney: What Powers Does the Principal Retain? • You do not give up any control when you sign a Power of Attorney. You can still handle all of your financial affairs • The person you name has no authority over you, can never tell you what to do or where you must live • If you are in a hospital or nursing home, they have No Authority to determine who visits you or whether family members can take you out for visits unless the document states otherwise. 14
Durable Powers of Attorney: Summary of Key Provisions • Statement of Durability • Photocopy as Valid as Original • Effective Date – When Signed • Third-Party Reliance • Protective Proceedings • Power to make Gifts • Specimen Signature • No authority to agree to binding arbitration 15
Durable Powers of Attorney: Choosing An Agent • Typically, a trusted family member with no history of theft, not in financial distress, competent, not subject to undue influence by other family members, younger and likely to outlive the principal • Name one person at a time, and at least one alternate. • The POA may be difficult to use with multiple parties named, regardless of language used. 16
Bank Accounts: Basic Considerations • A bank account with two names connected with the word “or” means either party has full access to the account. • A bank account with two names connected with the word “and” means both parties must act together to complete the transaction. • This rule is often ignored for routine bank transactions. • So - do not have accounts with someone you do not trust with your money! • An Attorney-in-Fact (POA) can act with either type of account to the same extent as the Principal. 17
Capacity: What Does It Mean? An adult is legally presumed to have capacity to make her own decisions about her health and safety until a probate Court finds that person lacks capacity, and names a Guardian. 18
When Does Someone Lack Capacity? Example from Georgia Law : O.C.G.A. 29-4-1. (a) The court may appoint a guardian for an adult only if the court finds the adult lacks sufficient capacity to make or communicate significant responsible decisions concerning his or her health or safety. 19
Working With a Client with Diminished Capacity: The ABA Model Rule (a) Client-Lawyer Relationship Rule 1.14 Client With Diminished Capacity (a) When a client's capacity to make adequately considered decisions in connection with a representation is diminished, whether because of minority, mental impairment or for some other reason, the lawyer shall, as far as reasonably possible, maintain a normal client-lawyer relationship with the client. 20
When Does Someone Have Capacity to Sign a POA? [A] client with diminished capacity often has the ability to understand, deliberate upon, and reach conclusions about matters affecting the client's own well-being. It is recognized that some persons of advanced age can be quite capable of handling routine financial matters while needing special legal protection concerning major transactions. (Rule comment) Citation: Comment on ABA Model Rule 1.14 (Client With Diminished Capacity) 21
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