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What Legal Documents do Your Parent’s Need?

As you assume more responsibility for your aging parents, you need to know many details that you had not been privy to earlier in life. You will become involved in their financial affairs, their medical care, their nutritional needs, and making sure they are getting social interaction. 

One of the first steps you should take is to find out where all of their legal documents are, and make sure they obtain any documents they may need in the future.

Here are some of the documents you may need in caring for your parents.

  • Durable Power of Attorney for Health Care. Also known as a medical power of attorney or a healthcare proxy, this document allows you to make health care decisions for your parent in case they are unable to speak for themselves. 

The power of attorney allows you to decide if your parent should be admitted or discharged to a medical facility or nursing home and what medicines or treatment regimens may be used.

One reason why it’s important to obtain a durable power of attorney for health care before it is needed is so your parent can include their wishes in the document for things like do not resuscitate (DNR) orders, organ donation, or directives specific to their condition. That way, you know you are doing what they want when it comes time. 

A health care power of attorney should include a HIPAA release giving you access to their medical records and allowing you to decide who else can access records.

As an agent for your parent, you cannot be held liable for any decisions you make on their behalf.  Your parent may also give power of attorney to more than one person, so you can share the responsibility with other family members. If your parent should get married after signing a power of attorney, the document becomes void, unless their new spouse had already been named as their agent. 

  • Medical Directive (Living Will.) A living will is different from a durable power of attorney for health care in that the living will applies to specific types of care involved in terminal situations or in the case of severe incapacitation, such as a coma. The living will applies to treatment modalities, whereas the power of attorney appoints a person to act for the patient.

A living will is also different from a regular will because it is used while your parent is still alive and only applies to life-threatening or end-of-life medical treatment. 

The living will covers decisions such as whether your parent wants a feeding tube if he or she can no longer feed themselves, what should happen if they can no longer breathe on their own, what types of pain medications can be used, whether they want a DNR order or DNI (do not intubate) and whether they want to donate their organs.

The living will comes into effect when your parent can no longer communicate his or her wishes. If they regain the ability to make decisions, the living will is no longer in effect.

States have varying guidelines for handling living wills and may call them Advance Health Care Directives or Directive to Physicians, so check with a local legal representative for more information.

  • Will. Your parent’s will direct what happens to their personal property and assets after they pass. It also dictates what happens to any businesses they may own. A will can only divide property held in one person’s name, so any property held jointly passes to the surviving owners. Also, a will does not cover life insurance policies, retirement accounts, or trusts that have designated beneficiaries.

Having a will can greatly reduce the strain on surviving family members of having to decide who gets what. Even if the assets are of sentimental value rather than monetary value, dividing them up can be stressful. 

  • Revocable Living Trust Deed. If your parent’s property is held in trust, it is handled somewhat differently than a will. A trust designates one person, a trustee, to carry out the grantor’s instructions with regards to money, property, and other assets. 

Most people use a revocable living trust. Revocable means they can make changes in their directives, or revoke the trust, if they wish. A revocable living trust is usually used when the grantor’s financial and property holdings are substantial, or they have complex business interests. As with a will, it does not override beneficiaries on life insurance policies or retirement accounts.

There are benefits of a trust over a will. A living trust can come into play before your parent’s death, in the event of mental incapacitation. Also, a living trust does not go through probate like a will, so the terms of the trust can be executed faster. Unlike a will, a trust does not become part of the public record, so your parent’s privacy is maintained. 

There are cases when both a trust and a will are needed. For example, if your parent’s trust covers financial assets, but not physical property, then a will can cover what is left out of the trust.

  • Durable Power of Attorney for Finances. The durable power of attorney for finances is very important for helping your parents manage their finances. This document gives you access to their financial accounts so you can pay their bills, manage investments, file tax returns, make purchases, transfer funds, and open or close accounts. 

Becoming involved in your parents day to day finances is often the first step into assuming greater responsibility for their care, and it may be the most difficult for them. They may have been raised to consider their finances a very private matter, or they may have a hard time accepting that they need the help of their adult children, so a gradual and gentle approach may be best.

The power of attorney can be written to become effective immediately, or if your parent isn’t ready for that, it can become effective at such a time that a physician declares them incapable of making their own decisions. 

If necessary, you might start out by having them add you to their checking account so you can help with bill paying and making deposits or transfers, and work towards adding all financial accounts. 

  • DNR Order. A Do Not Resuscitate order prohibits your parent’s medical providers from performing life-saving maneuvers in the event their heart stops beating or they stop breathing. This includes emergency personnel. The DNR may be included as a directive in their durable power of attorney for health care or their living will.

As mentioned, states have differing guidelines for some of these documents, so you may find slightly different terms in your state. 

In addition to these legal documents, you should know where your parent’s keep their important paperwork. Here is a checklist of items you might need to keep track of.

  • Bank accounts
  • Tax returns
  • Savings bonds, stock certificates, or brokerage accounts
  • Partnership or Articles of Incorporation
  • Pension documents
  • Retirement accounts
  • Annuity contracts
  • Property deeds or leases
  • Credit Card accounts
  • Loans or other debts
  • Safe deposit box keys
  • Online account usernames and passwords
  • Driver’s Licenses
  • Vehicle titles
  • Social Security card
  • Passport
  • Birth certificate
  • Military ID’s or veteran’s discharge papers
  • Marriage license
  • Divorce agreement
  • Death certificate of spouse
  • Citizenship papers
  • Medical history
  • Medical Insurance cards 
  • Long-term care insurance policy
  • Life-insurance policies
  • Funeral instructions 

Keep original documents in a safe place such as a fire safe, safety deposit box or locked filing cabinet, and keep copies of everything. Preparation can greatly ease any anxiety you or your aging parents may experience in the event of a medical emergency as well as making day to day decisions. 

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