After the Diagnosis: Essential Legal Documents for persons with dementia - PowerPoint Presentation

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After the Diagnosis:Essential Legal Documents for persons with dementia

Frances M. PantaleoBLEAKLEY PLATT & Schmidt, LLPOne North Lexington AvenueWhite Plains, NY 10601Tel: (914) 287-6118fpantaleo@bpslaw.comSlide2

Diagnosis of Alzheimer’s disease is a wake up call

Life Time Decision Making: Do you have the tools you will need to: Manage assets as the disease progresses?Make essential health care decisions?Estate Planning:Do you need to revise your estate planning documents to assure an orderly transfer of assets?Are there steps you can take to preserve your assets for your loved ones?Slide3

CAPACITYDiagnosis of memory loss, dementia or Alzheimer’s disease does not automatically equal loss of capacity.

Does the individual understand the document?Is the individual acting freely and without undue influence?Ability to sign name and understand documents will decline over time.Slide4

Time is of the EssenceSlide5

ADVANCE DIRECTIVES

Every estate plan should include discussion and preparation of these essential advance directives:Power of AttorneyHealth Care Proxy Living Will Medical privacy (HIPAA) releaseSlide6

POWER OF ATTORNEY

Essential tool for financial managementNames an agent to manage assets, carry out business, sell real estate.Significant changes in the New York statutory form enacted in 2009 and 2010.Slide7

Durable v. Non-Durable

Durable POA survives incapacity of principalNon-durable Power of Attorney is automatically revoked upon principal’s incapacity ALl Powers of Attorney are durable (and survive incapacity of the principal) unless the POA provides otherwise“Springing” Power of Attorney: Takes effect at a future time or upon an event defined by the principal, including but not limited to principal’s incapacity

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NOT

RECOMMENDEDSlide8

AGENTSCo-Agents

, if appointed, must act JOINTLY, unless paragraph (b) is initialed to state they shall act SEPARATELY.WARNING: MOST BANKS REFUSE TO ACCEPT A POA WHICH REQUIRES JOINT ACTION (2 SIGNATURES)!!Successor Agents: Designated in Paragraph (C) Slide9

MODIFICATIONS

Principal may expand or restrict the standard provisions in Modifications Section of the POA.Recommended modifications include the ability to create and fund a trust, open and close bank accounts, apply for government benefits.Slide10

GIFTING BY AGENTS

Standard POA limits gifts to annual total of $500 Principal must execute STATUTORY GIFTS RIDER (SGR) to permit additional gifting by agent. Essential to permit tax and Medicaid planning.Don’t try to do this yourself. Get a lawyer!Slide11

HEALTH CARE ADVANCE DIRECTIVES

HEALTH CARE PROXYLIVING WILLDO NOT RESUSCITATE (DNR)HIPAA RELEASEMOLSTSlide12

HEALTH CARE PROXY

Appoints agent to make all medical decisions, not just end of life care. Agent may only act if the principal is determined to be unable to make medical decisions.two witnessesCompetency is presumed. One agent at a time—no joint agents.Slide13

ARTIFICIAL HYDRATION AND NUTRITION

Agent may not make decisions about artificial nutrition and hydration (tube feeding) unless the principal’s wishes are known. Consider adding language to the form such as the following: “My agent knows my wishes about artificial nutrition and hydration and is authorized to make decisions about such treatment. “Slide14

LIVING WILL

No NY Statutory Form. Written declaration regarding wishes for end of life care and termination of life support. “Permission”Should specifically indicate agent’s wishes regarding cardiac resuscitation, mechanical respiration, antibiotics, pain relief, artificial nutrition and hydration.Controversy about whether needed if agent signs a health care proxy.Slide15

HIPAA RELEASE

Health Insurance Portability and Accountability Act prohibits release of confidential medical information without a written authorization by the patient. Information about privacy practices must be disclosed to patient by medical providersBlanket authorization form may be useful to care providers in dealing with medical professionals and insurance companies.Slide16

Do NOT Resuscitate Orders

Legal presumption favors resuscitation unless DNR in place.Capacity to consent to DNR is presumed unless doctors agree patient lacks capacity. Health care agent, guardians, spouse, child, parent, sibling or close friend may consent to DNR if patient incapacitated. Hospital orders reviewed every 7 days.Orders in residential care facilities reviewed at least every 60 days. Slide17

Non-Hospital DNR OrdersForms and identity bracelets available from DOH.

Form must be reviewed by Dr. every 90 days but does not expire.Must be presented to emergency medical personnel to be honored. Emergency workers may refuse to honor if they have a good faith belief that consent to the order has been revoked or if family members or others on the scene object, physical confrontation is deemed likely or for “other significant and exceptional medical circumstances.”Slide18

MOLST—Medical Orders for Life Sustaining Treatment

Bright Pink double sided 4 page formCompleted by doctor upon consultation with client about wishes for end of life care.Form can be transferred with the patient from care setting to care setting. Appropriate for clients with terminal illnesses or residing in long term care facilities who wish to avoid CPR, tube-feeding etc. May be used instead of Non-Hospital DNR.Slide19

TALK ABOUT IT!!!

Discuss your wishes about end of life treatment with your loved ones and family members. Copies of documents should be provided to family members, physicians, caregivers. Maintain in visible place in the home.Slide20

ESTATE PLANNINGWho will inherit your assets when you die?Slide21

Estate planning documentsLAST WILL AND TESTAMENT

TRUSTS—REVOCABLE AND IRREVOCABLEBENEFICIARY DESIGNATIONSTOD or PODLIFE ESTATE DEEDSASSET TITLE: JOINT TENANT vs JOINT TENANT WITH RIGHTS OF SURVIVORSHIP vs TENANTS BY THE ENTIRETYSlide22

THANK YOU!