Aging in Alabama

Now that spring has sprung and COVID restrictions are not dominating our daily lives, we need to get back to the basics.  Time to change your linens, clean those baseboards and review your documents!At a minimum, everyone needs a Durable Power of Attorney for financial matters and one for health care issues.  It is surprising to me how few people execute this very basic estate document.  If you dont have one, and you have a massive stroke, your family will likely have to go to court in order to handle your most basic personal financial matters.  This cost thousands of dollars and is a very difficult process on your loved ones.Next, everyone should execute an Advanced Directive for Health Care, which is also known as a living will.  This document allows you to choose ahead of time whether you would want to have your life artificially extended by the administration of medicine or machines, and whether you wish to have food or water given to you through a tube or IV.  If you do not have this document and catastrophe strikes, the hospital must take the maximum steps to keep you alive, and often the client is then sent to a nursing home where they can live a very long time under these circumstances.  Many do not want this to happen.  If this is the case, execute this document.  For Alabama, this document can be located for free on the Alabama Hospital Associations website.  Most hospitals, hospice companies and doctors offices can also provide the form.This document is often associated with a DNR or Do Not Resuscitate form.  That form is initiated by your physician most often, and is available for you if you reach the stage of your life that you really have no quality of life.  This is not a required document, even though a lot of facilities would prefer it and may infer that it is required.  You are the master of your destiny and you get to choose how your life ends.The next, most common document is the Last Will and Testament.  Everyone should have one, even if you put your children as beneficiary on your accounts and policies.  There may be a reason to open an estate and it will be more expensive and time consuming if you do not execute a will.  You should appoint a Personal Representative and should dictate who gets what property.  If you just want to say, I want my children to have my stuff, then the document will divide your residuary estate.  A common problem I see is where someone has a child they have raised but never formally adopted, or a partner they didnt marry, and those will be left out of any estate if you do not write a will.The last document you may want to consider is a Trust.  We are living in more complicated times, and it is important to have a will, however, that will needs to be probated in court to take effect following your death.  One way to exercise more control over your situation after your death is to set up a trust, that will manage the property over time.  If you have a set of documents that have been completed, make an appointment to determine if any changes should be made.  Laws and circumstances change all the time, so it is important to keep up with those changes.Talk to your estate professional as soon as possible and get your spring cleaning under way!  If you are concerned about getting out in person, call and set up a virtual appointment. Editor's Note:  This article was submitted by Kyla G. Kelim, Esq., Aging in Alabama

Guardianship Versus Powers of AttorneyOne of the most common questions I get as a practicing elder law attorney is, what is the difference between guardianship and a power of attorney? A power of attorney is a document that a person executes when they are competent to appoint someone to be their agent for either healthcare matters, financial matters or both. The defining characteristics of powers of attorney is that it is a voluntary action by the person, and it can be revoked at any time so a power of attorney cannot be used to trump someones free will in order to place them in a facility for example, against their wishes.A guardianship is a process where one typically files a pleading, requesting to be appointed as a persons guardian.  In this case, we must demonstrate that the person we seek to protect is incompetent to manage either their healthcare, or their finances, or both.The guardianship typically comes about in two primary ways. First, if the person we seek to protect never executed a power of attorney, and now is incapable, a guardianship would be necessary in order to handle things like an admission to a hospital or long-term care facility because no one has been appointed to consent to treatment for them.  Second is a situation where the person we seek to protect is actively combative to the plan in place to handle their health matters. In this case, we must seek guardianship in order to overcome their wishes, particularly if they are unwise. For example, if your parent develops dementia, but insists that there is nothing wrong with them, that they should continue to drive and live independently and manage their medication, despite evidence that those things are dangerous in their current condition, guardianship is typically necessary in order to restrict their freedom.In some states, like Florida, the guardianship will also cover financial matters.  in Alabama, the conservatorship is established at the same time as a guardianship in order to handle healthcare matters for those cases where there is no power of attorney, and the conservatorship is necessary in order pay their bills, access finances, and so forth.To establish financial guardianship, no matter what its called, we typically must be bonded so the person who is applying must be credit worthy and able to obtain a bond from a surety company. This ensures that the persons financial well-being is well taken care of.  If there is no one available, or if no one wishes to handle finances, every county typically has, or can appoint someone, as a county conservator to serve as that persons conservator.  This is helpful in cases where its a very difficult or complex financial situation.  Then it may be preferable to have a professional appointed and giving a relatively small fee for doing so.  This leaves the guardian to care for the healthcare of the individual without the added stress of complicated financial matters. Contact an elder attorney for more information about what your needs are and please dont put off executing a power of attorney in favor of those people that you trust as soon as you can to avoid what could be difficult and unnecessary proceedings in Probate Court down the road.This article was contributed by Kyla Kelim with Aging in Alabama.  Kyla is an experienced Elder Law attorney.  Contact Kyla at 251-281-8120.

WHY YOU NEED A POWER OF ATTORNEYEveryone should execute a durable power of attorney for healthcare and for finances.  This legal document gives someone you appoint the ability to make healthcare decisions for you if you cant, or to handle your finances if you are unable.  If you do not execute these documents and you become incapacitated suddenly, your family will be forced to go to probate court and seek a guardianship.  This is an expensive and difficult process that is unnecessary in some cases if you do take care of your paperwork in advance.WHAT IT IS AND WHAT IT IS NOTA power of attorney allows someone to sign you into a hospital or nursing home.  It does not make someone your boss.  This document cannot be used to trump your free will.  So, if you are at home recovering from an illness and wish to pay for care at home, no matter the cost, the person you appoint cannot overrule your decision by using the power of attorney you gave them.  HOW IT WORKSIt does serve to insulate your loved one from accruing your debt.  For example, your child rushes to the hospital when they get word that you are ill.  When they arrive, the business office hands them paperwork to sign that gives us permission to treat.  Later, the paperwork actually includes a financial guarantor clause.  By signing in their own name, they are undertaking any associated bills.  If they have a power of attorney, then they can sign your name and avoid that liability. WHAT IS A GUARDIANSHIPThis is a court appointment, and in Alabama, the Probate Court of your county opens a case upon the filing of a petition for guardianship and appoints two lawyers to your case; one lawyer will represent you the alleged incapacitated person, and the other will represent the Court. The Court requires that you be given proper notice and the opportunity to appear at a hearing.  Medical evidence showing your incapacity must be sworn.  If the court finds that you are incapacitated, then the Court enters an Order finding so and issues Letters of Guardianship, which gives the Guardian the ability to make healthcare decisions, or Letters of Conservatorship, which gives the Conservator the ability to handle financial matters.  In this case, since the Court oversees this process and ongoing finances, then the Guardian and Conservator have the final word, even if it means doing something different than what you want.HOW DO YOU PLAN FOR THIS?The mostimportant thing would be to execute your powers of attorney, because the personyou appoint has priority to serve as your Guardian or Conservator.  This helps the person you trust the most ifsomething terrible happens and you arent able to take care of yourself.  Please see an elder law attorney to find outthe best way to plan for your future. Although no one wants to think about a time when we are not able to make decisions, by not deciding, you might have an uncertain future. This article was written by Kyla G. Kelim, Esq., Aging in Alabama

ALABAMA UPDATE CHANGES IN THE LAW AFFECTING SENIORSEvery year, there are hundreds of laws considered by our government that are designed to improve the living conditions of our local seniors.  Several have passed or are in process of passage that have helped our area citizens live their best life.  In March, 2021, the Elderly and Vulnerable Adult Act went into effect, authorizing financial institutions to delay or stop suspicious financial transactions.  In June, 2022, the Alabama Legislature passed what is known as Shirleys Law, which implemented an Elder Abuse Registry the first of its kind in the nation.  All medical practitioners are required to report those they suspect are victims of abuse and there are criminal penalties for failure to do so.  Those who exploit seniors are placed on the list and all guardianship proceedings must come with clearance from Adult Protective Services that the proposed agent is not on the registry.  Named for a woman who was financially exploited by a caregiver, this law will help prevent vulnerable adults from being exploited in the future.  The Alabama Legislature is considering the Colby Act or an alternative to Guardianship and Conservatorship which would enable an adult to enter into an agreement with supporters who assist them in making decisions.  For many Alabamians, this is a welcome alternative.  For example, young disabled people who have the ability to achieve independence with help may use a supported decision making agreement to formally enlist those they trust to help them make the right decisions.  There are limits to what this Act can achieve.  For example, this alternative may not be a good fit for those living with dementia, who are not capable of making sound decisions regarding their health or finances and may require a court appointed guardian to ensure their lifes work is not wasted and they do not become exploited.Do you know someone who you suspect is the victim of Elder Abuse? Call the confidential hotline at Adult Protective Services:  1-800-458-7214.This article was submitted by Kyla Kelim with Aging in Alabama.  Contact Aging in Alabama at 251-281-8120.