What if I’ve Elected To Enroll In Hospice Care?
Should I Revise My Estate Planning Documents Now or Does it Not Matter?
Hospice and Estate Planning in NJ With a Durable Power of Attorney, Health Care Directive and Living Will
Once a decision has been made to move from getting better (cured) to accepting that the end of life is near through hospice care, individuals often question if there are additional steps they should take. And while hospice treatment (in some cases) can go on for years, a person dealing with a terminal illness needs to get his or her legal affairs in order, immediately if they are physically and mentally capable of making decisions.
Among those things which are essential for everyone, probably the most important is for you to have the right power of attorney in place, health care directive and living will.
UNDERSTANDING A DURABLE POWER OF ATTORNEY
A power of attorney is a document that gives someone the legal authority to make decisions for you if you cannot make decisions for yourself at some time in your life. There are powers of attorney for financial matters, and for life care and health care issues. Please pay special attention to the term “life care and health care issues”. To learn more about a Durable Power of Attorney, you can visit my dedicated Power of Attorney site found here: https://www.hnwlaw.com/elder-law/durable-power-of-attorney/
UNDERSTANDING HEALTH CARE DIRECTIVE AND LIVING WILL
A health care power of attorney (often called a medical directive or living will) allows someone to make decisions for you (when you can’t) concerning doctors, hospitals, medication and so on. People often wonder…”My husband and I have been married for 40 years; can’t I just make decisions for him or her?” Unfortunately, the law in NJ presumes that, no matter how long you’ve been married, or no matter how close you are to your loved one, if he or she has not given you legal authority to act for him or her by way of a written and signed power of attorney and/or healthcare directive, then he or she must have not wanted to give you permission to act for them. Yes, this means you do not have legal authority to make financial and/or health and life care decisions for your spouse or partner of 40 years.
Parents are the legal guardians of their minor children, and decisions for them can be made until the child turns 18. Once that child is no longer a minor but becomes an adult, after age 18… then the parent loses the legal authority to make decisions. If a child over age 18 has not given you specific authority to make medical or legal decisions for him or her, then the law presumes that they did not want to give you such authority. And that means you will not be able to legally make decisions for them. Yes, this means you cannot make legal decisions for your 49-year-old terminally ill unmarried son or daughter.
Having a power of attorney and living will in place is crucial where someone is on hospice, since their health may deteriorate to the point where your loved one can no longer communicate his or her wishes. If that’s the case, then perhaps at the most critical time, without a proper power of attorney in place, you will not be able to make legal, financial, and even life and death decisions for your loved one.
What’s more, if your loved one loses the ability to give you authority under a power of attorney, (i.e. if he can no longer understand and sign the documents) and decisions need to be made, you will have to go to court and begin a costly legal process called a guardianship or conservatorship.
From my experience as an elder law attorney who has helped thousands of families, the reason why people don’t have powers of attorney in place is not because they don’t want someone to make legal decisions for them or to manage things for them in times of emergency… it’s simply that they didn’t know they needed these documents. It comes as a shock when I tell them that, since nothing was ever put in writing, they have no legal authority to make decisions for their spouse or parents or adult children.
Having the appropriate financial and health care powers of attorney in place is a critical first step. Other legal issues related to end-of-life planning will likely also arise. After executing a durable power of attorney for finances, health care, and for health-care treatment (i.e. a living will), you and your family may need to consider estate planning. Please contact Fredrick P. Niemann to discuss your hospice estate planning matter. He can be reached at (855) 376-5291 or by email at fniemann@hnlawfirm.com.
ESTATE PLANNING WHEN IN HOSPICE CAN SAVE A LIFETIME OF SAVINGS AND INCOME FROM A NURSING HOME OR THE STATE OF NEW JERSEY
Whenever a “major life event” occurs, attorneys recommend that you review your wills and trusts. Your current legal documents may no longer be appropriate. You may want to make changes that reflect your new reality… hospice. Having a life-threatening illness is a “major life event” that compels review of all your legal documents. Plans and decisions made earlier in life when you were healthy may no longer be appropriate.
For instance, many clients set up what we call “sweetheart wills” in which each spouse leaves everything to the other, and then at the death of the second spouse, to the children. That may be exactly the wrong way to set things up now, given one spouse’s illness. It may be that things can be modified in a beneficial manner so that if the “healthy spouse” passes away first, family resources can be put into a trust for the benefit of the spouse who is on hospice… or perhaps the assets can be passed down to the children to protect these assets from Medicaid and a nursing home. This is where legal planning with an attorney experienced in dealing with patients on hospice is critical.
Changing property titles: The way in which your real estate and investments are titled can be critically important. In some cases, if things aren’t handled properly now, then dealing with the property later may require going to court. Reviewing titles to real and personal property is an important part of planning. That way, you can be sure your family members are protected after your passing if the illness requires long-term care in a nursing home.
Strategies for financial gifts: Consulting a knowledgeable attorney is especially important before you transfer any property or make any gifts. We can help you review your financial situation to determine whether a gifting program or another financial strategy is appropriate. Making gifts can protect your family and help save your estate, but acting improperly can have significant legal consequences, and can even make you or a loved one ineligible for government benefits. Thus, it is crucial that you have sound advice if long-term care is needed now or in the future.
Fredrick P. Niemann Esq.
If you would like to speak to a NJ hospice attorney for asset protection and estate planning, contact Fredrick P. Niemann, Esq. toll-free at (855) 376-5291 or email him at fniemann@hnlawfirm.com to schedule a consultation about your particular needs. He welcomes your calls and inquiries and you’ll find him very approachable and easy to talk to.
Written by Fredrick P. Niemann, Esq. of Hanlon Niemann & Wright, a New Jersey Hospice Care Attorney
NJ Lawyer – NJ Attorney Hospice – Legal Affairs in Order