Advanced Directives

lawyer who handles estate planningLiving Will

Living wills should not be confused with last wills and testament. Living wills do not provide for the disposition of assets after death. Living wills are designed to state an individual’s preference with regard to medical treatment should they be unable to communicate or direct their doctors or family members concerning their wishes. This prevents loved ones from being in a difficult position with regard to making decisions concerning someone else’s health and welfare without any input from them. A living will can state that in the event the individual is declared brain dead, no artificial respiration or mechanical life supporting machines should be used to keep them alive. It is thought that if an individual is brain dead, medical measures to keep the body functioning do not prolong life, but rather prolongs death. In addition, living wills spell out the types of medical care an individual wants if they are unconscious, develop mental issues, or are simply unable to communicate their desires concerning their medical treatment.

The Living Will and the Terry Schiavo Case

A number of years ago there was a case which received a lot of national attention involving a 26 year old woman, Terry Schiavo. Terry had a heart attack. She lapsed into a coma and spent 15 years in what doctors described as an irreversible, persistent vegetative state. Terry could not communicate in any way, form or manner concerning her wishes regarding her medical care. Terry’s husband felt she would not want to continue living in a vegetative state. He requested the feeding tube attached to her body be removed and she be allowed to die a natural death. Terry’s parents strongly disagreed with this decision. They brought a legal proceeding to stop the feeding tube from being removed. There was extensive legal proceedings involving significant amounts of money through lower courts and appeals courts regarding the Terry Schiavo case. In the end, the husband was successful. The feeding tube was removed and Terry died a natural death.


An individual never knows when something catastrophic is going to happen to him or her. Using the advanced directive of a living will can avoid the type of problems that existed in the Terry Schiavo case.

estate planning attorneyElliot S. Schlissel is a member of the National Academy of Elder Law Attorneys.

The Durable Power of Attorney

A power of attorney is a document that gives the authority for one person to delegate responsibilities or authority to another individual with regard to financial transactions. A power of attorney appoints an agent to act on behalf of the creator to help the creator with a variety of legal and financial transactions. Powers of attorney can be broad in scope or narrow in scope depending on the circumstances involved.

There are a variety of different types of powers of attorney. In estate planning, a durable power of attorney is used. A durable power of attorney is different than the standard type of power of attorney. In the normal power of attorney, when the creator becomes incompetent or incapacitated the power of attorney loses effect. However, with a durable power of attorney, even in the event the creator is incapacitated, the power of attorney remains in full effect.

Who Can Create a Power of Attorney?

A durable power of attorney can only be created by someone who is competent at the day he or she executes the power of attorney. This means the person creating the power of attorney must understand the effects of the document and what he or she is doing. The agent appointed must be a minimum of 18 years of age in the State of New York.

Actions to be Taken Under a Durable Power of Attorney

Some of the actions that an agent under a durable power of attorney can perform are (1) medicaid planning, (2) paying of credit card bills, mortgage bills, fuel oil bills, and bills of any type and nature, (3) selling a home, (4) paying taxes to the state and federal government, and, (5) conducting a variety of business transactions, including making decisions on investments.

Drafting a Durable Power of Attorney

There are many unexpected issues and events that can occur during the course of a person’s lifetime. One of the purposes of the durable power of attorney is to see to it that in the event the principal is unable to take care of his or her financial needs, there is someone available to help him or her.

elder care assistance Elliot S. Schlissel is a member of the National Academy of Elder Law Attorneys. He assists his clients in elder care planning, medicaid planning, and drafting of wills and trusts.

Estate Planning: Talking to Your Parents About Their Assets

new york wills and trusts attorneyThree-quarters of all adults have indicated they have significant problems preventing them from having reasonable, intelligent discussions with elderly family members concerning estate planning issues. In most cases, the children aren’t even prepared to bring the subject up. Unfortunately, this can cause substantial problems in handling the parents’ estates when they pass.

Healthcare Proxies and Powers of Attorney

Elderly Americans should have both healthcare proxies and estate planning powers of attorney. These documents can assist them should they become incapacitated or mentally incompetent. The use of the these two elder law planning tools can prevent bad decisions from being made with regard to helping maintain and keep parents comfortable in their home.

When a senior is able to manage his or her affairs is the best time to have these discussions. The discussions should deal with who will make financial decisions if the senior becomes unable to make them himself or herself. Studies have shown approximately half of Americans will suffer some mental loss during their senior years. There are numerous cases where seniors live in homes without electricity and heat because they forget or ignore paying their bills. In these cases, the execution of an estate planning power of attorney to a trusted child, relative or friend would help eliminate these type of problems.

Seniors Controlling Their Lives

Seniors should be the ones to initiate discussions with regard to dealing with end of life issues. A senior should pick a friend, family member or child who is both knowledgeable in handling financial matters and whom they can trust with their valuable assets.

A Simple Will

At a minimum, seniors should have a simple will. They should either advise their attorney or their loved ones what their assets are and where they are located. If the senior designates one of his or her children to assist in paying bills and handling financial affairs, this child should keep his or her brothers and sisters up to date on what he or she is doing.

estate planning for familiesElliot S. Schlissel is a member of the National Academy of Elder Law Attorneys.

Elder Law Estate Plan: What is an elder law estate plan and what are its components?

estate planning lawyerA Trust

Most elder law estate plans are composed of either an Irrevocable Medicaid Asset Protection Trust (MAPT) or a Revocable Living Trust (RLT). The MAPT is utilized where protection of assets is required because the senior does not have long term care insurance. Assets need to be protected in the event the senior needs to go into a nursing home and will require Medicaid eligibility to pay for the nursing home expenses. A Revocable Living Trust will protect inheritances from creditors, and in some instances, have a similar impact to a prenuptial agreement or postnuptial agreement.

Pour Over Will

In the event you have a trust written for you, it will be necessary to draft a pour over will to go with this trust. A pour over will pours assets left out of the trust back into the trust at the time of your death. If assets not placed in the trust are kept as joint assets with another individual or have a designated beneficiary, it will eliminate the need for the probate of the pour over will. The pour over will is an emergency device that hopefully will not need to be used.

Advanced Directives

There are several advanced directives. The first is a Power of Attorney. An estate planning power of attorney is designed to name an individual to help you with your financial affairs should you be unable to take care of these affairs on your own. Elder law attorneys draft very user friendly powers of attorney which include powers to change beneficiaries of IRA’s and other insurance contracts, allow the preparation of a trust agreement if one doesn’t exist and to make gifts pursuant to an estate plan.

Health Care Proxy/Living Will

Health Care Proxy is an individual named to make medical decisions in the event you are unable to make those decisions on your own. The living will provides a road map to family members and loved ones concerning the termination of life support under circumstances where three doctors have certified there is irreversible brain damage and that you will never gain consciousness.

Funeral And Burial Instructions

This involves preparing a hand written note laying out your final instructions to your next of kin concerning your funeral and internment. Distribution of jewelry and personal items in the household such as furniture, photographs and memorabilia is best handled in a personal note to the executor and next of kin. These items are not usually dealt with in a will or trust.costs of dying on Long Island

Five Easy Steps To Financing And Care For Your Elderly Parents

Worried about how to take care of your aging parents’ health care and livelihood expenses? To save oneself from stress and worry in the years ahead, financial planning and investment in family insurance is the smart option.

Now, you have five easy steps to help you tide over these worries.

If you plan in advance, then finance in the later years is not as stressful. Once retired, your elderly parents do not have a regular income and you would need to subsidise their daily expenses and health care.

Recent studies with several households reflect this new trend of the younger generation needing to plan for their parent’s old age, with increasing life spans bringing with it geriatric ailments requiring specific healthcare and recession having swallowed up their parents’ hard earned savings. With worries of one’s own impending retirement, college costs for children, it is worrisome indeed and without correct and timely planning or investment in the correct schemes which will give returns at the time one needs them the most, one could face extremely trying times ahead. However, if one is prepared legally, saves smart and invests in the correct healthcare insurance, looking after one’s own family needs as well as that of aged parents need not be a burden.

Keeping in mind these five steps should definitely help:

  • Handle memory loss or illness in old age by assigning power of attorney for important decisions. One cannot plan for Alzeimer’s or dementia, it creeps up on you so, a smart way to pre-empt the agony of legal wrangles with property and decisions regarding life threatening diseases even, is to have a clear power of attorney assigned while your parents are able bodied and have clarity of thought.
  • Get expert help on financial planning and improved savings. There are several schemes in the market today but one needs to figure out early, even from an expert at your workplace which would be the financial plan best suited to your needs and family.
  • Choose the correct insurance policy for your family which gives you maximum benefits and remember the earlier one invests in an insurance scheme, the lower the premium and greater the benefits. Competition between insurance companies will have insurance advisors knocking on your door dispensing free advice. All one has to do is study the options and take an informed decision.
  • Research financial and care resources on the net and in libraries as one needs to know the different aspects of the policies, the different types of healthcare schemes available and the benefits of each.
  • Get a professional financial advisor today! As the saying goes, the early bird catches the worm. In this case, it is the early investor who will have less grey hair himself while caring for a silver haired parent! Tax relief for dependent parents is still a matter of debate so a wiser option would be to save well and save now.

Marie is an accomplished financial consultant writing about socio-economic problems as well as legal and financial articles on debt, bankruptcy, loan, stock market, binary brokers, credit card, personal injury on various websites. She has been writing for the last 5 years.