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Legal and Financial Plans to Make When Alzheimer's Is the Diagnosis
Alzheimer's disease affects over 5 million Americans and their families, according to the 2011 Alzheimer's Association report. In Florida as in the rest of the nation, the numbers are rapidly increasing. There is still no way to prevent the disease. However, you can prevent, or at least minimize, the legal and financial trauma associated with it by putting the appropriate legal plans in place.
It is important not to delay too much in making these plans. Many of the steps that must be taken can be accomplished only while the individual remains competent.
Steps to take include:
Authorize someone to handle the patient's financial affairs when he/she is no longer able to do so
This step is accomplished by creating a Durable Power of Attorney. A Durable Power of Attorney empowers one or more individuals to handle the patient's financial and business affairs for example, dealing with banks, brokerages, selling or buying property, etc.
Florida recognizes two types of Durable Power of Attorney. The contingent power gives the agent the ability to act only at the point when there is incapacity. The "Immediate" power allows the agent to act on the individuals behalf as soon as the document is executed. A Florida Certified Elder Law Attorney can advise as to which type best suits the given situation.
Many people assume that it is sufficient for the Durable Power of Attorney to state it gives the agent all power which I may have. However, in Florida, an agent is legally allowed to perform only those tasks specifically mentioned in the Durable Power of Attorney. This is especially important for Alzheimer's patients and their families, since establishing the patient's eligibility for Florida Medicaid or Veterans Benefits may require the agent to make gifts, perform transfers, sell property, etc. Your attorney can advise you about the specific powers that should be built into the Durable Power of Attorney.
If the patient has a pre-existing Durable Power of Attorney, it should be reviewed by a Certified Elder Law Attorney to make sure it is still consistent with current Florida Law, the proper agents are named, etc.
Authorize someone to makethe patient's health care decisions when he/she is no longer able to do so
Someone diagnosed with Alzheimer's Disease should have Advance Health Care Directives. A key Advance Directive is the Florida Health Care Power of Attorney (also known as the Health Care Surrogate). It empowers one or more persons to make the Alzheimer's patients medical decisions when he or she is not capable of doing so. If the patient lacks a valid Health Care Power of Attorney and is not competent to communicate his/her own wishes, Florida Statutes determine who has the power to make the decisions. A worst-case scenario may involved a court guardianship.
Its crucial that the Health Care Power of Attorney include a HIPAA release. The Health Insurance Portability and Accountability Act restricts the release of patient medical information. Without such a waiver, the agent may not be able to get the needed information from health care providers. A Florida resident with an older Health Care Power of Attorney should have the document reviewed to make sure it includes HIPAA language.
Its also a good idea for the patient to note in the document who he/she would like to serve as guardian, if for any reason guardianship must be commenced. Although the court is not bound to this request, it is heavily considered.
A Living Will may also be appropriate. It specifies the kind of life-extending care a person does or does not want if in a terminal or end-stage condition, or in a persistent vegetative state. Creating a Living Will can be a great kindness to family members, helping them work through the emotionally difficult decision of whether to commence, continue, or terminate life-sustaining treatments.
Review the titling and positioning of the assets of the patient and the spouse, and consider Medicaid Planning and Veterans Benefits Planning for Longterm Care
If a patient who does not have sufficient longterm care insurance needs long-term nursing care in the future, the family will want to apply for Florida Medicaid benefits to cover nursing home costs. How assets are titled is critically important in order to establish eligibility for Medicaid benefits as quickly as possible, preserve assets, and protect the spouse from impoverishment. A gifting program may also be put in place with an eye to eventual application for Medicaid benefits.
Any transfers or gifts must be undertaken only with the guidance of an experienced Florida Certified Elder Law Attorney. Medicaid benefits law is extremely complex, and blunders may lead to unnecessary penalties, delayed eligibility and loss of assets that could otherwise be avoided.
If the patient is a veteran or the widow of a veteran, the individual's eligibility for V.A. Benefits for at-home care, an assisted living facility or extended nursing home care should also be explored with the attorney. Any actions taken to establish Veterans Benefits eligibility must be coordinated with the steps taken to establish Medicaid eligibility.
Create a Will
A Florida Will is a document that directs where assets will be transferred upon the death of the patient. This instrument only covers those assets that pass under the Will, not those jointly held or payable on death to a designated beneficiary. It may also be advantageous for the patient to establish a Trust. A Florida Certified Elder Law Attorney can discuss which approach best suits the situation.
If the patient is married, review the spouse's assets and estate plan
The spouses estate plan should also be carefully reviewed. This is especially critical if the patient must ever seek Medicaid benefits for long-term care: If the spouse predeceases the patient, any inheritance from the spouse may render the individual ineligible. There are legal steps that may be taken that will allow a spouse to leave money to an incapacitated spouse without jeopardizing the spouse's eligibility for Medicaid benefits, but this process must be carefully orchestrated with your Florida Certified Elder Law Attorney.
It is likely that the spouse's Health Care Power of Attorney and Durable Power of Attorney name the patient as agent. Obviously, these designations will need to be reviewed and modified.