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Helping Aging Parents with Estate Planning

incapacitated elderly person estate plans

Discussing estate planning with your aging parents is challenging but necessary. There will come a time to help your parents create a comprehensive estate plan that will include some tools that will ensure that you can step in and take care of them if they become incapacitated, whether due to a sudden illness, injury, or general cognitive decline.

If you are the child of an aging parent in Naples, Florida, you should check that your parents have the following estate planning tools in place.

1. Power of Attorney.

A power of attorney is a legal document that allows you to designate an agent to act on your behalf and manage your personal and financial matters if you become incapacitated. Often parents name their trusted adult child as their agent. In Florida, an agent can only perform acts expressly granted in the document. Among other things, you can give your agent the power to pay bills, manage their bank account and investments, sell property, and file taxes.

To ease your parent’s minds, you can remind them that agents are fiduciaries. As a fiduciary, the agent must act in good faith, preserve the principal’s estate plan, and cannot delegate their authority to a third party. Under Florida law, agents are required to keep records of all receipts, disbursements, and transactions made on behalf of the principal. Simply put if you are designated as the agent, you will have the authority to assist them with financial matters based on their wishes.

2. Designation of Healthcare Surrogate.

A Designation of Healthcare Surrogate is part of an set of tools called Advance Directives. It is a legal document that allows your parent to pick an agent to make healthcare decisions on your behalf if you are incapacitated.  Sometimes known as a Healthcare Power of Attorney, an agent is usually a trusted family member such as a spouse or an adult child.

A Do Not Resuscitate Order (DNRO) is signed by a doctor and has all the power and effect of a physician’s order. If your parent does not have a DNRO in place and then incurs a serious life threatening illness  you as their health care surrogate could create a binding DNRO on your parents behalf.

Some of the acts that a healthcare agent can take include:

• Accessing your medical records,

• Directing physicians and other medical professionals who treat you,

• Deciding where you will receive care (assisted living, nursing home, hospital, rehabilitation facility, etc.),

• What drug treatments you should receive, and

• Giving or denying consent for medical treatments.

3. Living Will.

A Living Will is also part of Advance Directives tools and is a legal document where your parent can state their intentions for end-of-life medical care.  It is very different from a last will and testament.

A Living Will is used to communicate your desires about what types of “heroic” or life-prolonging measures you would want doctors and hospital staff to use. These measures can include tube feeding, ventilators (intubation), surgical amputation, dialysis, multiple medications and other methods. In addition, you can use a Living Will to express your desire for palliative care versus curative treatment and pain management in terminal stages. Aging parents usually understand the need to make thoughtful, rational decisions that ensure their dignity and quality of life at the end of life. The Living Will enables them to express their wishes and directions.

When your parent has a living will their wishes are spelled out so you, as their child, will not be forced to make difficult decisions about their care. It reduces family arguments and confusion that can arise when loved ones disagree over what to do. Additionally, the Living Will helps minimize unwanted and unnecessary medical care and expense and ensure that an individual’s life  is concluded with compassion and dignity.

4. Revocable Living Trust.

In a revocable living trust, the creator of the trust acts as the trustee and can make changes to the trust. The creator also names a successor trustee to take over if they become incapacitated. Typically, this is the same person named as the agent in the durable power of attorney. In the event that you become incapacitated, your successor trustee will automatically have access and control over the trust property.

Your care, while you are incapacitated, can quickly become extremely costly. Within the trust, you can provide instructions for how you and your loved ones are to be financially supported during this time.

What Happens If Your Parent Becomes Incapacitated Without an Estate Plan?

If your parent becomes incapacity and has not created an estate plan, it is likely that your family will need to go to court and ask the judge to appoint a guardian. The court process can be long, confusing, and expensive. The person appointed by the court may not be who your parent would have chosen.

If the court appoints a guardian, they will be required to provide an accounting of the assets and day-to-day life of the ward. This is a very detailed process that can be very burdensome for the guardian. Significant time, expense, and stress can be prevented by the creation of a comprehensive estate plan.

Call A Naples Estate Planning Lawyer

If you have questions about creating an estate plan for your aging parents and advance directives, you should contact Nici Law Firm. James R. Nici is an experienced Naples estate planning attorney with over 25 years of experience. Contact our office today at (239) 449-6150 or use our web form to set up a free consultation.

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