Installment 2 of 10
In Our Series: “Long Term Care Costs for the Middle Class: 10 Steps to Asset Protection Through Medicaid in Illinois, for Middle Class Seniors and Boomers”
In this part of our 10 installment series I would like to discuss when it is necessary to invoke the services of a physician in the estate planning, long-term care planning and eldercare journey.
Obviously if there are immediate health concerns a physician should be contacted straightaway, before legal counsel is sought.
However, there are circumstances where, in the process of delivering not only medical services, but also in the process of offering legal services, that we discover that the involvement of a physician is necessary. This generally arises in cases where clients come in to execute powers of attorney for property and powers of attorney for healthcare. In cases such as this, generally speaking, most clients will be able to walk into my office, introduce themselves to me explain to me what they wish to request from our law firm regarding services and engage us for those services.
However there are instances in dealing with aging seniors and disabled adults where it becomes clear to me, as a lawyer, that I cannot be sure that the prospective client has full mental capacity. Sometimes, diminished capacity manifests itself by being unable to express your thoughts, comprehend thoughts that are presented, or formulate judgments based on facts that are presented.
As a lawyer, it is my duty to suggest that the client be evaluated to determine the level of their capacity when I suspect that a potential client may not have the ability to comprehend what I am recommending to them.
This is unfortunate, because sometimes the physician will give an opinion that indicates that the potential client no longer has the ability to make sound decisions or comprehend matters set before them. When that happens, I, as a lawyer, cannot present a document, such as powers of attorney, to such a client for signature, because I may be asking them to sign something they do not understand— which is prohibited under the professional rules of conduct for lawyers.
The client’s inability to sign these documents will often result in the failure to do further planning and may create the need to seek a guardianship through the court process so somebody can act as a surrogate decision-maker for this person who has now lost their cognitive capacity.
Thus, it is my recommendation that you seek counsel as early as you can in your life to obtain and put in place documents that will reflect your choice of surrogate decision-maker so that if you can no longer make decisions for yourself, your choice will prevail. Unfortunately, many of our clients do not come into our office and request powers of attorney and other advanced directives, so that later on they are left to request the court system to assist them in surrogate decision matters through a full-blown guardianship proceeding. This is very expensive, time-consuming and impersonal.
Don’t leave your decision-making authority to the court system unless it’s an absolute last resort, because this is a very expensive and impersonal process. You are better off putting in place powers of attorney for healthcare, powers of attorney for property and other advanced directives that will allow the person you choose to seamlessly proceed to make decisions for you pursuant to the guidelines you have set forth.
Don’t wait until it’s too late.
Coming up in our future blogs in this series:
- Revise Powers of Attorney – See Previous Article
- Contact a Physician – See Above
- Seek Guardianship
- Revise Old Wills and Trusts
- Create a Blueprint
- Inventory Assets
- Seek Placement in a Facility
- Select a Strategy
- Prepare and File the Medicaid Application
- Prepare for the Post Application Audit