Documents Every Senior Should Create
Durable Power of Attorney - This is the most important document for Washington seniors to create to minimize any loss of independence.
Living Will (aka Advance Healthcare Directive)- These directives communicate to your doctor how much and what kind of care you wish to receive when you are not expected to live more than six months, or to recover from a coma or vegetative state.
Will - Direct who will get your fortune after you have died.
Further Elder Law Issues to Consider
Planning for Long Term Care- Most long term care is not covered by Medicare and can quickly diminish you resources. But, if you plan ahead, you may be able to get the care you need, live where you want to live and still leave assets to your children.
Guardianship - These are proceedings where your civil rights can be taken away from you because you have demonstrated an "inability to adequately provide for nutrition, health, housing, or physical safety" or "to adequately manage property or financial affairs." RCW 11.88.010. The best way to avoid this is to create a well considered Durable Power of Attorney.
Probate and Estate Administration - After someone dies, this process insures that the legal requirements are met and the estate is properly distributed to the heirs.
Trusts -can be particularly useful for leaving assets to disabled beneficiaries without threatening their disability insurance standing, leaving assets to beneficiaries you do not trust, and sheltering high value assets from estate taxes. However, trusts tend to be complicated, expensive to create and expensive to maintain. For most people, creating a will, even given the costs of probate, is usually simpler and less expensive.
Washington law protects the autonomy of its elders more than many people realize.
As set out in the law:
"It is the intent of the legislature to protect the liberty and autonomy of all people of this state, and to enable them to exercise their rights under the law to the maximum extent, consistent with the capacity of each person." RCW 11.88.005
It all pivots on the extent of your capacity, as determined in a court of law. Nothing short of a court order can take away your right to make your own decisions, even bad ones.
"Age, eccentricity, poverty, or medical diagnosis alone shall not be sufficient to justify a finding of incapacity." RCW 11.88.010
Who CANNOT take away your rights:
Your family - What if my spouse or my children decide that I am not safe in my home and want to put me in a nursing home, but I don't want to go?
You have the right to refuse. Neither your spouse nor your children have legal authority to make you live anywhere that you don't want to live or do anything you don't want to do.
On the other hand, if you are demonstrating an "inability to adequately provide for nutrition, health, housing, or physical safety" or "at significant risk of financial harm based upon a demonstrated inability to adequately manage property or financial affairs" (RCW 11.88.010) your loved ones, or the state Adult Protective Service might seek a guardianship, in which you can lose many rights.
Your Doctor - What if my doctor believes that I am not competent to care for myself and that I ought to move to a nursing home?
Your doctor has no legal authority to make you stay anywhere or do anything you don't want to do.
There are no legal penalties or threats to your Medicare for going against your doctor's advice.
But again, make sure to figure out how to meet your care needs to avoid a guardianship.
Your Attorney-in-Fact (Power of Attorney) - What if I gave someone Power of Attorney to make health care and/or financial decisions for me?
You retain the legal authority to make decisions for yourself, though "informed consent" in the medical realm may only be available through others if your doctor thinks you are not competent.
You may also revoke the power of attorney if you want to. To protect yourself from a guardianship, make sure you have at least one back up so there can be someone in place after you have revoked the original power of attorney
the person with power of attorney does not have legal authority to make you stay anywhere or do anything if you don't want to - even if your doctor has determined that you are incompetent.
Your Attorney-in-Fact is supposed to make decisions for you based on "substitute judgment" - what you would have done before you lost capacity, usually based on personal knowledge of your prior decisions. What is in your "best interest" becomes the standard if your Attorney-in-Fact does not know what you would have decided while you still had capacity.
Who CAN take away your rights:
The Court - How much autonomy can the court take from me and how does it work?
The Court's power to deny you your civil rights is formidable. You can lose the following rights:
The process begins by someone alerting the court that she thinks you are not taking adequate care of yourself and/or of your money, and that you need a guardian
The court hires an investigator, who speaks to everyone involved, and gets a medical report.
The court holds a hearing and considers testimony, including the findings of the investigator.
In that hearing you have the right to an attorney (if you cannot afford an attorney, one will be provided to you) who is supposed to zealously advocate for what you want.
For the court to find that you lack capacity, the evidence must show that you have already demonstrated an inability to adequately manage your own affairs.
The court is supposed to impose the least restrictive limits to your independence to provide you with sufficient protection and assistance, yet leave you with maximum liberty and autonomy.
If you created a Durable Power of Attorney, it probably would include the nomination for your Attorney in Fact to be guardian. The court will appoint that person unless good cause is shown why it would be a bad choice.
A guardian- would then take over making those decisions in your life that the court deemed necessary.
For instance, your guardian might:
A guardian's decisions are supposed to be based on "substituted judgment" - what you would have decided before you lost capacity - even if she thinks it would not be the best choice.
Your guardian does not have the right to:
However, a guardian is usually able to tell you where you cannot live if she deems it unsafe.
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