Legal Matters and Older Adults

Almost everyone would prefer to have a say in who is given the authority to manage their affairs when they can no longer make those decisions on their own. Likewise, most people want to decide for themselves how their estate and personal items will be distributed after their death.

Pre-planning ensures your affairs are handled in the manner you desire and is one of the greatest gifts you can give to your family and friends. Here are explanations of some crucial planning documents.

The advance directive for healthcare, sometimes called a living will, is a written, legal document that allows individuals, age 18 or older and of sound mind, to inform physicians and others of their wishes to: • Receive, decline, or withdraw life-sustaining medical care. • Appoint a healthcare proxy to make medical decisions when they are no longer able. • Donate specified organs or the entire body for transplant or research.

The advance directive is only used if your physician and another doctor both determine you are no longer able to make medical decisions. Once your advance directive is completed, copies should be given to your family, physician, attorney, healthcare proxy and alternate healthcare proxy. It is also recommended that you keep a copy in your car and at home in case of a medical emergency. If you live in an assisted living facility or nursing home, a copy should be included in your resident file.

Your advance directive should be reviewed every few years, especially after a major, life-changing event. The advance directive can be revoked at any time and in any manner that indicates your intention to revoke. Completing a new advance directive automatically revokes the old one. All relevant parties should have a copy of the new advance directive.

An Oklahoma Advance Directive for Health Care can be downloaded free at the Oklahoma Department of Health website, the Oklahoma Bar Association website, and www.legalaidok.org.

An Advance Directive for Mental Health Treatment, also known as a Psychiatric Advance Directive (PAD), allows a person of sound mind to execute a document that will inform mental health providers of their wishes for psychiatric treatment in the event the person is incapable of making or communicating these instructions. The PAD can include instructions about psychiatric medications and hospitalization. You may also appoint an “attorney in fact” to instruct mental health professionals on your behalf.

A PAD comes into effect once two physicians or psychologists determine a person is in need of mental health treatment and is incapable of making decisions about that treatment. A PAD can be superseded by an advance directive for healthcare or a durable power of attorney. Consult a lawyer to ensure all your wishes will be followed.

A power of attorney (POA) gives another person the authority to make decisions on your behalf. Typically, a person names a trusted family member or friend as their POA. There are two types of POA: durable and non-durable. Both allow the person the exact same authority while you – the creator – are well and of sound mind and body. But when you are not well and are unable to make decisions for yourself, the durable power of attorney (DPOA) remains active, but the non-durable power of attorney becomes inactive. New Oklahoma laws make all powers of attorney durable unless the document specifically states that it is nondurable.

The DPOA is an inexpensive alternative to a court-supervised guardianship, which is necessary when a person becomes incapacitated without preplanning. While there is a uniform statutory form for a durable power of attorney, it is strongly advised to consult an attorney to draft a DPOA.

If a person doesn’t have a DPOA, and it is determined that the individual is incapacitated, the court will appoint a guardian – usually an adult child, spouse, sibling, or other relative of the individual (now known as the ward) or an attorney, public guardian, or bank – to take care of the person or their property.

The court will tailor the powers of the guardian to the needs of the ward. General guardianship gives the guardian almost complete power over the ward’s property and/or person. Limited guardianship gives the guardian only the powers specified by the court, and the ward keeps power to manage the other areas. Special guardianship is a temporary, limited guardianship during an emergency.

A trust is used in estate planning as a means of holding property for someone’s benefit in a separate legal entity. People frequently like to use a Revocable Living Trust to manage their property while they are living with the intention that the trust will distribute their property according to its terms after they die. It is often how people avoid probate after their death and can be a quicker and less expensive option to probate. Trust planning usually costs more than just preparing a will but there are benefits. A trust should be created with the help of an estate planning attorney.

A will is a legal document that communicates how a person wishes personal assets and property to be distributed after their death. You must be age 18 or older and of sound mind to craft a will. When a person dies without a valid will, their property is distributed through probate according to state laws, rather than a person’s wishes. These laws only allow distribution of property to family, as strictly outlined by the law. When you plan ahead and create a valid will, you may give your property to anyone you please after your death. A will can be easily changed or revoked.

A will that is entirely handwritten, dated and signed in the creator’s own handwriting and contains no typed or printed portion is valid in Oklahoma. It is highly recommended, however, that you have an attorney draft your will. The will should be filed with the probate division of your county courthouse.

This language can be added to a bank account as an easy way to keep money out of probate. To implement a payable-on-death provision, a bank-provided form must be completed, naming the person you want to inherit the account. While you are alive, the person has no rights to the account. After your death, the beneficiary must show proof of your death and their identity to collect any funds in the account.