Having “The Talk” with your Parents

Yeah, I know it can be uncomfortable to talk about these kinds of things with your parents. They come from a different time (and sometimes a different country)where these topics are  taboo,  but it has to be done.  I’ve done it repeatedly and it wasn’t as bad as I thought.  Come to think of it, it was cathartic and I know my parents felt good about it too.

No, I am not talking about the “birds and the bees.” What I am talking about is health, death and money.

We’d all like to think that our parents will live to a ripe old age, without infirmities and  pass away snug in their beds.   I know I want that for myself- and for my parents- but the reality is that all of us will die of something. Health and Death are not topics to shy away from.  On the contrary, you need to have these discussions with your parents while they are still alive and have the capacity to meaningfully talk about these issues with you. You also need to have this discussion with yourself about your own health and wishes.

The below is a succinct and general post that provides an overview of  the legal documents that serve to protect your parents’ wishes regarding their health, money and death.

Health: Does your parent (or parents) want to be kept alive by artificial means if they were to suffer from a catastrophic injury or illness that would severely impact their quality of life?  Whether the answer is yes or no, your parent needs a Living Will. While the latter is not legally enforceable in New York State, it is a document that is recognized and respected by medical personnel.  Click here to download a copy to read.  It expressly states a person’s wishes regarding medical treatment, artificial respiration and the appointment of a health care agent to carry out those wishes.  In addition, a Health Care Proxy, which is legally recognized,  is also strongly recommended. Like a Living Will, it memorializes a person’s wishes regarding end of life issues but it is a general power regarding medical care and treatment should the principal become disabled. Click here to download a copy to read.

They have religiously conscious health care proxies too, like a Halachic Health Care Proxy that aligns with Jewish law.  Click here to download a copy to read.  In addition, there are reading materials on the internet for Catholic and Orthodox Christians, as well as other denominations, regarding the use of health care proxies.

Money: Does your parent (or parents) have a Last Will and Testament? They should, no matter how big or small their “estate” is. If your parent dies without a will it means they died ” intestate,” which means a headache to obtain and/or dispose of their assets-plus Uncle Sam will take a nice chunk out of it before it ever gets to the beneficiaries.  For some assets, a  Trust is an even better testamentary document for the disposition of assets.  There are different types of trusts and each has a specific function and objective.  And last but not least, the never to be forgotten Power of Attorney.  Necessary.  End of story.

Death: The “Last Will and Testament” can express the testator’s wishes regarding burial or disposition of remains, as well as who or what will pay for it.  In my opinion, there is an even more important document that everyone should have in their legal arsenal,  the  “Appointment of Agent to Control Disposition of Remains. Click here to download your own copy. It can designate how  remains are to be disposed (i.e. burial, cremation, spreading of ashes, being buried in your favorite dress, etc.) as well as whether  there will be a wake for the deceased, an open or closed casket,  a religious ceremony (a service or Mass), a graveside prayer, or no prayer at all.

These topics may not be easy to talk about, but once you do and they put their wishes in writing, you will feel as if a big weight has been lifted. I would even venture to say, it’s a good feeling.

So go and have “the talk” with mom and dad, or anyone else you care about.

Making the Most of a MOLST in New York State

I recently attended an Elder Law Conference and was able to learn more about Medical Orders for Life Sustaining Treatment, or MOLST for short, a medical document used in  New York State (and slowly being rolled out in other states). In my opinion, it is a document any person who is suffering from a serious medical condition should have with their records.  One of the great things about a MOLST is that it is meant to follow the patient from one hospital/facility to another, which is why I suspect it is printed (and must always be) on bright neon pink paper (making it much easier to distinguish from other medical documents or records).

How does a person obtain a MOLST? A MOLST can only be obtained after the patient has discussed their diagnosis, prognosis, thoughts on life-sustaining treatments with their physician and has communicated their position regarding life sustaining treatment to their physician. The most “suitable” candidate for a MOLST is an individual who currently resides in a long-term care facility or requires long-term care and could possibly die within the next year. A MOLST does NOT replace Advance Directives, like a Health Care Proxy and/or Living Will. Every person should have the latter documents, whether they are old, young, healthy or sick.

Unlike Advance Directives, a MOLST contains actionable medical orders, is set in the present (i.e. medical personnel can act on the orders right now),  and the patient can still have capacity to make decisions even when a MOLST is in effect. The only way to modify a MOLST is if a physician examines the patient, reviews the medical orders and changes them (based on the patient’s current medical condition).

A MOLST addresses the some of the same issues as contained within Advance Directives, like artificial nutrition and hydration, cardiopulmonary resuscitation (CPR), artificial/mechanical respiration, the use of antibiotics in the course of treatment as well as future hospitalizations or transfers to other facilities.

The most comprehensive website by far, exclusively devoted to end of life/palliative care issues  (and that goes into much greater detail than this post) is http://www.compassionandsupport.org – I strongly recommend that you search this website.  It not only contains the most current version of the MOLST, which you can print for personal use- on bright neon pink paper, of course, but useful information on the history of MOLST (which began in Rochester, NY) and information for families/patients and professionals.  It really is a wonderful website. An added bonus, you can also read the website en español aqui.

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A Power of Attorney: Not just a piece of paper

As of today, September 12, 2010, the Amendments made to the New York Power of Attorney law are in effect and go back retroactively to September 1, 2009, the date on which previous amendments were made to the law. If you would like to read the actual amendments (like me), click here.

Power of Attorney is a legal document that allows a person, the “principal,”  to give another individual, the “agent,”  the power to act on their behalf  in every day, but financially sensitive, matters– while the person is still alive. The  principal  must be incapacitated physically and/or mentally in order for the power to take effect. In my opinion, a POA, as it is commonly referred to by practitioners, is more powerful than a will, in that it gives the person to whom the “power of attorney” is entrusted the ability to run another person’s  affairs…and if the duties are not performed ethically, is a vehicle that can be used to commit outright fraud.  It can destroy the principal’s financial security in their most vulnerable of moments.

Who needs a Power of Attorney? Everyone (in my opinion)

Why do we need a Power of Attorney? If at any time you become incapacitated physically and/or mentally and are unable to handle your personal and financial affairs, you will need someone to do it for you. The power bestowed on the agent can be as broad or narrow as the principal desires.

What financial affairs does the Power of Attorney cover? The below is not an all inclusive list ( it’s pretty close) but you get the picture:

  • Real Estate
  • Estate Transactions
  • Trusts
  • Retirement Plans
  • Safe Deposit Boxes
  • Loans and Debts
  • Social Security Benefits
  • Government and Military Benefits
  • Medical Records and Billing
  • Claims and Litigation
  • Tax matters
  • Stock market transactions
  • Personal and family maintenance
  • Business Operating Transactions
  • ALMOST anything having to do with something you own OR owe

Can you have more than one agent? Yes and they can either act together or separately.

Is the Power of Attorney revocable? Yes.

In addition to the Power of Attorney, there is also something called a “Statutory Major Gifts Rider” which can be a part of your Power of Attorney, if you are inclined, have the ability, means or desire, to make monetary gifts or money transfers to family or to allow the agent to make monetary gifts to him or herself.  The principal must expressly grant this power and can also designate the amount of the gift or gifts.  Two words: powerful and scary. But legal.

This post is not meant to fully explain what a POA is or does, it’s a primer to whet your appetite and get you thinking about how to protect yourself should you be unable to do it.   I hope that my brief intro into the Power of Attorney gets you to think about one thing: Who would you trust with your life?  That’s what a POA kind of is– your life on a piece of paper.