I recently did a Facebook Live interview with Barbara Schlichtman, who is an attorney with the Maine Center for Elder Law. We talked about the various things you should think about and get in order so that if “something happens” your loved ones don’t have to do a frantic search for your important information. This is a synopsis of what we discussed.
Questions to consider
What if you could no longer speak for yourself. Who would you want to speak for you? Who would you want to make important decisions, carry out your wishes, take care of your bills, your personal affairs? Does your family even know what your final wishes are? Do you know what your parents’ wishes are?
First step: Financial Power of Attorney
You should have a financial power of attorney document in place. If you’re no longer able to speak for yourself or make decisions, somebody needs to be able to deal with your bills and financial matters. Without the power of attorney, people have to go to court and get what’s known as a conservatorship. It pulls in court supervision and just becomes a more expensive and more stressful problem that can be avoided with a simple financial power attorney.
You want to appoint somebody you wholeheartedly trust. These are important decisions that everybody should make. Where that becomes a problem is if people are not in agreement, and that can become an expensive problem. That’s why it’s so important to have those conversations ahead of time and to designate who you want to be responsible.
What’s a medical power of attorney?
A medical power of attorney is used when important decisions have to be made about end-of-life care. Those typically come into play if somebody is in a persistent vegetative state, an irreversible coma, or has a terminal illness.
Sometimes people want to appoint all of their children to make health care decisions. What hospitals really want to see is one point person to be the final person they talk to. A doctor doesn’t want to be put in the role of being a mediator between children who disagree on health care decisions. Everybody can talk about it, but you really need to appoint one person who’s the spokesperson.
Are living wills and health care directives the same thing?
They are the same thing, but it can be confusing. In Maine, the document is referred to as the health care advance directive. You can get one for free from the Maine Hospital Association website. They have a form that you can download and if you can get two witnesses, it’s a valid document.
What is a health care proxy?
A health care proxy is the health care agent who will be making medical decisions. Maine’s health care advance directive takes care of all of that. You want to make sure your agent knows that the form exists and where it is. In my opinion, it’s a good idea to go ahead and give the person the form in case they need to utilize it.
Health care advance directives should also go to doctors and medical providers. It should be part of the medical record. In our office, we subscribe our clients to a service called DocuBank. We upload PDFs of their health care documents to this company and then they receive what looks like a little insurance card to carry in their wallet. If you travel or go to an emergency room, your health care documents can be accessed or emailed immediately, 24 hours a day.
Health care advance directive vs. DNR
A health care advance directive is different than a do not resuscitate order (DNR). The health care directive is where you make your end of life choices. You may not want measures that prolong the process of dying such as artificial nutrition and hydration. Or you may want pain relief, even if it hastens death.
Maine requires two witnesses. There’s also a space to have it notarized. I recommend getting it notarized because if you go out of state, there are some states that require the notarization.
The DNR order is a separate document that says if your heart stops or if you stop breathing, you don’t want to be revived. You might fill one out if you are in the hospital. That has to be signed by the doctor, which makes it a doctor’s order.
If you download the health care advance directive form, most of the pages are the health care directive. The last page is a do not resuscitate order. Some people put them on their refrigerator, so if the ambulance comes, the EMT can find it. If they can identify and confirm that the person in need of care is the same person who signed the do not resuscitate order, they will not resuscitate. They will honor that order, so it’s a really powerful document.
What is a durable power of attorney?
When I refer to the financial power of attorney, that’s typically a financial durable power of attorney. The term durable means that something stays in effect even after the person loses capacity. Up until 2010 in the state of Maine, the word durable had to be there. The law was changed so that now the presumption is that a power of attorney is durable unless it states otherwise.
One example of a power of attorney that would not be durable is signing a limited power of attorney authorizing somebody to go to a house closing for you.
How much should you tell your kids/designated person?
It’s really up to the client’s discretion what they want the kids to know and not know. Many times parents are happy to have their children sitting in on the meeting and hearing everything, but that’s not always the case. Some parents don’t want their children to know what they own or where they are. They’ve always been fiercely independent and they intend to stay that way, so I honor that.
What the children should know at a minimum is who to call if something happens and where the documents are. This is my accountant’s name, this is my attorney’s name, this is where my documents are. Create some kind of a binder or handoff with things they need to know.
We created refrigerator magnets that simply say my estate planning documents are with the Maine Center for Elder Law with our phone number. People live all around the country and adult children will show up in the event of a crisis and they don’t know where to begin. They’re kind of on a detective mission, so leaving a clue on the refrigerator is helpful.
Tips on finding a financial advisor
Number one, you want somebody you’re comfortable talking to. Another important element to know is that some financial planners are under a fiduciary duty to their clients. That means when they make decisions and give advice, they are under a legal obligation to do what is in the best interest of their client. I point this out because we would all assume that that’s always the case, but in fact, it’s not.
A key question to ask is do you have a fiduciary duty to me? There’s a specific certification that requires the planner to have the fiduciary duty. I am not saying this to disparage or criticize any group of professionals, but just be aware that they earn their money from selling financial products.
When you’re selecting a financial planner the first thing to do is ask do you have a fiduciary duty to me? If the answer is yes, they’ll explain it and also what they’re going to do and how they’re compensated.
If the answer is no, they should explain how your interests are going to be protected and again, how they are compensated.
For more information, watch the video
You can watch a video of the entire interview, which includes more detail and a discussion about how to pay for long-term care. We had to make a copy of the original (Facebook won’t let you share videos outside of Facebook) and it’s poor quality. Sorry, it was my first time doing Facebook Live — learned a lot!
If you have additional questions for Barbara, ask them in the comment box below or send me an email.