Advance directives of healthcare, including components formerly called the Living Will, Health Care Agent Designation, and HIPAA Medical Release, are crucial elements of every estate plan in Marietta. One issue that does not come up very often when discussing health care directives, though, is mental health. Mental health falls into the realm of health care and, as such, is covered by health care directives.
Health care directives can be a great help to those suffering from mental health issues as it can allow a loved one to help make decisions about care, discuss treatments and medications with health care professionals, and fill out the documentation that’s sometimes necessary in order to receive needed health care services. Marietta GA estate planning attorneys advise that when making these types of decisions regarding who will advocate on your behalf in health care situations, especially when mental health issues are a concern, it is important to choose someone you trust to carry out your wishes.
However, it’s also worth noting that a standard health care directive may not be adequate when dealing with more extreme mental health issues, such as Alzheimer’s or schizophrenia. In these cases, it may be a good idea to consult with a Marietta estate planning lawyer regarding a “mental health care directive” that can be used for more extreme cases. Mental health care directives specifically cover items such as involuntary commitment, intensive therapy, and greater control over medications.
Of course, if a person is not cognitively capable of signing a legal document like a mental health care directive, this document will not end up doing anyone any good. In cases where a person’s mental state will not allow them to sign a legal document, a conservatorship or guardianship hearing must be held at the probate court in order to give a caregiver the authority to make mental and physical health decisions for their loved ones. This can be a long and difficult process, and it would be wise to consult with an experienced Marietta estate planning lawyer in order to determine what course of action would be best for your individual situation.
If you have questions about your health care directives, or if you’d like more information about how having health care directives can provide peace of mind when mental health issues are of a concern, please contact our Marietta estate planning law firm at 770-425-6060 or email@example.com to set up a Georgia Family Treasures Planning Session at no charge.
It’s Christmas time and as an East Cobb Wills Lawyer, I look for fun ways to relate legal concepts in popular media. The novelty Christmas song, “Grandma Got Run Over by a Reindeer,” written by Randy Brooks and first recorded by Elmo and Patsy in 1979, is about a grandmother who gets intoxicated on Christmas Eve from drinking too much eggnog at a family gathering. To complicate matters she has forgotten to take her medication and she ignores warnings from her family. As a result, she staggers outside into a snowstorm. On her way home, she is allegedly trampled by Santa Claus’s reindeer-pulled sleigh. At the next day’s Christmas “festivities,” instead of celebrating the holiday, “all the family’s dressed in black.” Grandpa acts as if nothing has happened, and is drinking beer, watching football and playing “cards with cousin Mel.” The song suggests that Santa, “a man who drives a sleigh and plays with elves,”is unfit to drive and that the listening public should be wary of him, as a menace to society.
Since I’m an Estate Planning lawyer, I can’t just leave it there. I wonder about Grandma’s estate. (Yes, I do that sort of thing.)
Imagine Grandma survived the attack but was still seriously injured. After the collision, she is unconscious and unresponsive. Her doctor declares her legally incompetent. What happens to Grandma and her stuff depends on what estate planning Grandma and Grandpa have put into place.
First, assume that, like two out of three of us, Grandma and Grandpa have NOT done proper estate planning. When Grandma is admitted to the hospital, since she does not have an Advance Directive for Health Care, she has no control over who will make health care decisions for her now that she can’t communicate her wishes. Under Georgia’s Medical Consent Law, the next of kin can consent if the patient is unable to do so. The spouse is the first option for a patient who is married. So it’s all up to Grandpa. Yep, he’ll get around to deciding that right after the next round of cards.
For another scenario, let’s assume Grandma makes it, but her care is getting expensive. She and Grandpa had maintained separate bank accounts all these years. Grandma’s pension is in her account and all of the household bills are in her name. Grandpa will have to go through a lengthy, public and costly court process to be appointed as Grandma’s guardian and conservator to access Grandma’s pension to pay hospital and household expenses. He will most likely have to post a bond to make sure he doesn’t mishandle Grandma’s money. This process will take several weeks and will cost several thousand dollars. Considering Grandpa’s greater interest in drinking beer and playing cards, it will probably be a hefty bond.
Now, let’s look several months down the road from the horrific attack. Sadly, Grandma does not make it, and finally, “all the family’s dressed in black.” So NOW what happens to Grandma’s property?
Sadly, Grandma did not have a Last Will and Testament. Are you surprised? Georgia’s laws of intestate succession provide the default or “do nothing” plan. It is a one-size fits all Will (sort of like Grandpa’s overalls) that says Grandma’s estate will be split between Grandpa and her unnamed children. Let’s assume Grandma and Grandpa had two children, Elmo and Patsy. Grandpa receives the same size share as each child (but not less than one third) and Elmo and Patsy will also receive one third each. Don’t worry about old Cousin Mel getting anything: before she would become an heir, Grandma’s spouse, children, and all grandchildren, parents and siblings would have had to have predeceased her before Mel, a cousin, receives anything. Okay, so maybe Mel will get the playing cards.
Just like the guardianship and conservatorship, this matter will be handled in the probate court, and is likewise a public, time-consuming, and costly process. Not the smartest of options, but not an unlikely result, considering this silly family.
Let’s look at a more controlled and alternative outcome to the tragic situation now. This time, because she was thinking ahead, Grandma had signed an Advance Directive for Health Care naming Sister Sally as her health care agent. Since Grandma is now unable to communicate her wishes, Sally can make her health care decisions for her. She can admit Grandma to the hospital and request, consent to treatment or withdraw treatment. (And, unlike Grandpa, Sister Sally won’t hesitate!)
this time Grandma also has a durable power of attorney and a revocable living trust, so when she became incapacitated, Sister Sally is able to immediately act on her behalf to handle her finances as her agent or “attorney in fact.” This works out better for Grandpa, too. Instead of having to file for guardianship and conservatorship over Grandma, he could keep his scheduled card games with the guys. Sally becomes the successor Trustee and gained access to Grandma’s money with minimal time and expense and it was all handled privately.
Grandma’s living trust was fully funded (meaning the title of all of her accounts and property were transferred to it), so when she ultimately passed on, her family did not have to go through the several months of delays and costs of a public probate process (several thousand dollars more), but instead was able to have immediate access to the money and property. Sally took a modest fee allotted by Grandma for her efforts as trustee and transferred funds to Grandpa as he needed them.
So the next Christmas, the goose was on the table, as was the pudding made of fig. As the blue and silver candle that matched the hair in Grandma’s wig flickered, everyone remembered Grandma fondly, as they all waited for the jury award in Grandma’s lawsuit against Santa.
And they all lived happily ever after.
(Adapted from a prior post co-written by Steve Worrall and Shelia Manely, originally posted here)
A Health Care Power of Attorney, also called a Health Care Proxy or Durable Power of Attorney for Health Care, lets you give legal authority to another person (a proxy or agent) to make decisions about your health care if you are unable to make them yourself. This prevents the courts from getting involved if there is disagreement between family members and/or the medical community as to what actions you would want taken.
Keep in mind that you will continue to make decisions about your care for as long as you are able. You are only naming someone as a successor, to step in and act for you when you cannot. This document can be valuable even for short periods of time, such as if you are recovering from surgery.
But it is more associated with end-of-life decisions. The person you name as your agent or proxy may make decisions that will extend your life for as long as possible or bring your earthly life to an end. These decisions may include whether or not you should have surgery, if life support should be initiated, and/or if nutrition should be stopped. The legal document includes your wishes on these and other end-of-life issues.
This is a difficult subject for some people to even think about, but it is important that you do, and that you discuss these matters with your physician, family members and friends. The more people who know about your preferences, the easier it will be for your agent/proxy to carry out your instructions. Of course, you might change your mind over time, so let others (especially your agent/proxy) know what you are thinking.
Whom should you name as your agent/proxy? Here are some considerations:
- Most people name a family member, but you can also name a trusted friend.
- It should be someone who knows you well, respects your wishes and will follow your instructions.
- It might bring you some comfort if this person shares your values about faith, life and death.
- You should name more than one person in case your first choice is unable to act. But list them in the order you want them to serve. This would give your agent/proxy others with whom to consult and discuss options, but you want one person (not a committee) making the final decisions.
- Consider your candidates’ personalities and emotional make up, and whether they would be able to handle the responsibility.
If you have been asked to be someone’s agent/proxy, consider carefully if you would be able to follow his/her wishes when that time comes. Most people consider it an honor to be asked, knowing this person has chosen you to have his or her life in your hands.
This is the second in a series of articles on what to expect when you work with your Atlanta will and trust lawyer. Each article will cover several of the topics that you will need to consider to make a plan that works for your needs.
Our last article looked at several things you will need to consider and prepare when working with your will and trust lawyer in Atlanta. Today’s article continues on with additional considerations that are generally important upon death.
- Wills and Trusts: Estate planning lawyers are focused on helping you craft just the right kinds of wills and trusts for your needs. (And, no, trusts are not just for super-rich people.) These documents will be used to explain your wishes for what is to happen with your assets when you die and will be used to protect your estate or heirs from paying unnecessary taxes on what you are leaving behind.
- Funeral Arrangements: Your Atlanta will and trust lawyer will likely encourage you to make funeral arrangements as part of the planning process. Planning for one’s own funeral isn’t always the most enjoyable task (although some folks do find it cathartic). On the other hand, taking care of arrangements in advance takes a big burden off of your family and friends and helps to ensure that things happen the way you would have wanted.
- Organ Donation: Medical science has progressed to the point where many organs and tissues of deceased individuals can be used to give the living a new lease on life. Your Atlanta will and trust lawyer can go over these possibilities with you and help you put the proper documentation in order if organ or tissue donation is something you want to do.
- Obituary: Oftentimes, an obituary is written by a close friend or relative after someone has passed away. You can actually write your own in advance, saving them from doing so during their grief and making sure that you get to highlight the events and achievements from your life that were most important to you. Keep in mind that obituaries are not typically published for free, so your estate plan may also set aside some money to pay for the placement of the piece.
- Health Care Directives: Your health care directives are an incredibly important part of working with a will and trust lawyer in Atlanta, and you need to be sure that they’re not only in order, but also available to those who need them. These documents will include information on your choices about medical treatment, as well as end-of-life decisions that you have already made.
By working with a reputable will and trust lawyer in Atlanta, you can make sure that all of these areas are considered and that they fall under the laws and codes of Georgia. For more information or help getting started, please feel free to call our office at 770-425-6060 to schedule a complimentary Georgia Family Treasures Planning Session ($750 value) with the mention of this article.
Image courtesy of photostock at FreeDigitalPhotos.net
Georgia Parents of Graduating Seniors:
Did you know…
Now that your graduating senior is “legally” an adult, you can no longer make important medical or financial decisions on his or her behalf?
UNLESS you have these 3 things in place…… (see below to discover how EASY it is to legally intervene if your child is injured or otherwise unable to speak on his or her behalf!)
Your graduating senior may still be your baby, but in the eyes of the law he or she is now an ADULT!
That means you can no longer make important medical or financial decisions for your child without their permission.
But let’s face it….your job of being a PARENT doesn’t stop just because your child turns 18. If there’s a medical emergency or your child asks for financial help, you NEED the ability to cut through the legal red tape and get involved.
FACT: Doctors, hospitals or financial institutions will NOT bend the rules on this! It’s against privacy laws. You must have 3 KEY DOCUMENTS in place to make important medical or financial decisions on your child’s behalf (just imagine the nightmare of your child getting hurt hundreds of miles away at school and the hospital refuses to give you so much as a status update!).
I call these 3 key documents the Parent Sanity Protection Kit, as they give you the legal permission you need to HELP your child and avoid more gray at the same time!
Advance Health Care Directive
Financial Power of Attorney
To ensure your child is protected before the summer or college starts, you can now receive this critical Parent Sanity Protection Kit just $350 when you call 770.425.6060 and schedule your appointment by June 30th.
P.S. – Graduation Gift for YOU, too, Moms and dads: Mention this blog post and receive a FREE Georgia Family Treasures Planning Session (normally $750) to go over YOUR will, trust or other legal documents! Having an “adult” child is a huge life-change for mom or dad too and your estate planning documents must be updated accordingly!
Resolving to get your legal affairs in order is one of the most important things you can do to make sure your family, wishes and assets are protected if something unexpectedly happens to you this year.
Marietta, Georgia- While many people focus on getting out of debt or getting organized for the New Year, estate planning is an equally important personal finance goal that should make every adult’s to-do list.
That’s because according to Marietta estate planning lawyer, Steve Worrall, far too many area residents are without plans to protect their family, wishes and assets should something unexpectedly happen to them. A recent Lawyers.com survey further reveals that only 35% of adults have a basic will or other estate planning documents in place should death or incapacity occur.
“Contrary to popular belief, estate planning isn’t just for the rich,” says Worrall. “At a bare minimum, every adult needs a basic will, power of attorney and health care directives in place to avoid a legal and financial nightmare if something unexpectedly happens to them,” he adds.
So what are these documents and how do they help you in a time of emergency? Worrall explains the following:
- Will- A will is a document that specifies what should happen to your assets if you pass away. A will may also contain guardian nominations to dictate who will care for your minor children if something unexpectedly happens to you.
- Trust- A trust is a legal entity that can hold title to property. With your assets securely placed in a trust, you can minimize your financial exposure to lawsuits, divorce and bankruptcy while alive. Upon death, a trust will keep your affairs private and out of the probate court. It also allows a great deal of control for people who do not want their inheritance going outright to their heirs if something unexpectedly happens.
- Power of Attorney- A power of attorney or POA gives explicit permission for someone to access your personal accounts, pay your bills and handle all other financial and legal affairs if you are incapacitated in an accident but do not die. Under the current privacy laws, even a spouse may have a hard time accessing personal information without such documentation in place.
- Advanced Health Care Directive- Also known as a living will, this document specifies your healthcare wishes if you are incapacitated in an accident and unable to speak for yourself. Such wishes may range from whether you want certain medications administered to when (if at all) to start life support in critical situations. This document also allows you to appoint the person best suited to carry out such wishes should incapacity occur.
“Accidents and serious illness happen every day without warning,” says Worrall. “That’s why it’s so important for any adult who has not tackled their estate planning to add it to their resolutions this year. It will save their family from years of headaches and thousands of dollars in unexpected costs should the unthinkable happen”.
About Steve Worrall
Stephen M. Worrall is an experienced family law and wills, trusts and estate planning attorney in Marietta and Atlanta, Georgia. He concentrates his practice in all areas of family estate planning, including including wills, trusts, guardians for minor children and incapacitated adults, probate and trust administration, and all areas of family law, including divorce, adoption and prenuptial agreements. He also helps families plan to protect their assets and their children in the event of their death or incapacity, and to transfer their whole wealth – their financial, intellectual, and spiritual assets – to their loved ones.