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Seniors – You Can Maintain Control After Control Slips Away With the Right Plan

Elder lawyers, in my humble opinion, handle some of the most compassionate of legal cases. We help the aged address their medical and financial needs when they are no longer able to, and we help them devise a plan to do so before the time comes when they can no longer do it themselves. In almost every one of these cases, the client’s plans or decisions involve the cooperation of their spouses, children, other family members or loved ones. But without a plan, the future is not so assured.

The simplest, yet most profound, thing I ever learned from another professional in this field is to keep in mind the two major goals of the elderly person: Maintaining control when control is in the process of being lost, and creating a legacy in the world when time is running short. (How to Say It to Seniors: Closing the Communication Gap with Our Elders, David Solie, M.S., P.A., Prentice Hall Press, 2004.) In most cases, the latter goal is the easier one, done by helping clients craft an estate plan (usually via a last will and testament or similar documents) that leaves their assets and worldly goods and possessions to those whom they deem worthy recipients after they are gone.

The former, on the other hand, is a trickier matter, one of helping the elderly maintain their dignity at a time when faculties fail and dignity seems to be slipping away. It is that loss of control that we all fear the most, and with good reason. “What will happen to me if I become senile, or get dementia, or become a victim of Alzheimer’s disease? Will I be OK? Who will look out for me and watch over me? Who will make my decisions for me? Will my wishes be carried out?” These questions are more urgent to those closing in on the time when age-related maladies occur.

These very deep and valid questions are legitimate concerns that can be answered before a person ever reaches that point, and that is the beauty of advance planning. If the aging would simply plan for these eventual events, they will be assured that their last years will be as golden as they could possibly make them. Advanced directives (powers of attorney, health care proxies, living wills), wills, trusts, Medicaid planning and long-term care insurance – these are all tools the elder lawyer uses or recommends to craft a plan to suit each particular client’s needs and finances.

More importantly, they are the tools that every individual has at their disposal to maintain control over their future. Because without this type of advance planning, these decisions will be made by courts and laws that do not necessarily reflect the individual’s wishes. For example, without a will, a state’s intestacy laws control who will receive the individual’s worldly goods upon death. If you want to leave your estate assets to a more distant relative or loved one and skip over closer relatives, your wishes must be known in your will. Without a durable power of attorney or revocable living trust, the guardianship courts will decide who will make your financial decisions. And without health care proxies and living wills, either the law (if your state has a “default” health care proxy law, like New York’s new law) or a guardianship court will make those decisions. Who wants their life being controlled like this?

If you want to ensure that your wishes are carried out when you are no longer able to do so yourself, see an estate planning or elder care lawyer to help you devise the right plan for your future. This way, you maintain control over your decisions, your assets and your future – your way.

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