Legal documents protect everything from finances to medical treatments. Do you or your senior loved one have the proper legal forms in place? No judgment if you don’t – I certainly need to get on the ball with getting mine completed. That said, I’m sure we all realize that there are several documents that all aging parents should have. Additionally, if you’re a caregiver to an elderly person, you will want to protect your loved one’s legal affairs. The following documents will not only protect the senior’s legal rights, they will also help their adult children know their wishes, allowing for important decisions to be made.
The legal checklist for aging parents includes:
- Durable Medical Power of Attorney (health care proxy) or Advance Medical Directive (also known as a living will)
- Durable Power of Attorney for financial decisions
- HIPAA release form for all physicians
- A current, updated will, estate plan, or a trust
- End of life instructions (hospice wishes, DNR, organ donation, funeral wishes, cemetery plot deeds)
- Birth certificates
- Deeds to the home
- Bank account information
- Stocks, bonds, and brokerage information
- Insurance policies
- Veteran’s discharge papers
- Death certificate of spouse, if applicable
- Divorce decrees
- Citizenship papers
- Pension benefits, 401 (k), annuity names and contact information
- Debt documentation, including information for credit cards, loans, purchase contracts, rental agreements
- Vehicle titles
In this article, we’ll go over the items on the list to explain what they are and why you need them.
Breakdown Of The Legal Checklist For Aging Parents
If you’re a caregiver to an elderly, it is your responsibility to protect your loved one’s legal affairs. You should have a checklist for aging parents. Your parents are counting on you for managing their legal affairs in the event of their death or incapacitation. Are you confident that you have everything required to effectively handle that role? Are you aware of their wishes regarding care needed as long as they are alive? Do you know about their power of attorney? Who has the power of attorney? Do they have enough to pay off their cost of life-long care?
“Many seniors are passionate about keeping their financial information private, even from close family members. Problems arise when a family member is not aware of bank accounts, assets, and pensions, or at least where to find that information. Without a clear picture of the senior’s finances, the family may think that their loved one cannot afford the care they need or the care they feel their loved one would choose for themselves. Keeping exact dollar amounts private until absolutely necessary is okay, but make sure you have a lock box or folder that is organized and accessible to the person who would help arrange for your care if you are injured or ill.” – Tiffany Wise, Director of Partnership, A Place For Mom
When your parents have entered their golden years, it is critically important to understand their concerns about health care and finances. It will help to have relevant documentation handy at all times in order to address those issues. From legally binding documents to crucial end-of-life papers, you need to ensure these documents exist and know where to locate them, as this will help you honor your parent’s wishes and give you peace of mind.
*NOTE: BE SURE to update all of your parent’s legal documents every 5 years! In certain U.S. states, they will NOT be honored unless this has been done!
Durable Medical Power of Attorney (Health Care Proxy)
Also called a Health Care Proxy, Healthcare Power of Attorney, or Living Will, a Durable Medical Power Of Attorney is a type of advance directive that designates a person to make healthcare decisions for you if you are not able to do so. This document is relevant to people living in nursing homes or assisted living facilities, or for those receiving home care. It is also necessary if the person enters a hospital.
The Medical POA is one of the key documents on the legal checklist for aging parents because it allows the individual to appoint an agent to act on their behalf in medical matters if they become incapable of making decisions or communicating them. In fact, when I took my father to the hospital after he suffered a minor heart attack, the very first question I was asked by all providers, as well as the Admitting Desk was if he had a Medical Power of Attorney (and if I was named in it).
The medical POA cannot be used for making decisions on financial matters, for which you must have a financial Power of Attorney. The person named as the medical POA (called the agent) must follow the specific directions given in the document. They are designated to make decisions for such situations as whether or not their loved one (the principal) should be put on life support services or if those services should be discontinued. The POA also designates the agent to make decisions on treatment and treatment plans. They can also decide which doctors or specialists should be consulted for treatment of conditions that were not foreseen in the medical POA.
A doctor must attest to a specific triggering event affecting the principal’s health in order for the Medical POA to be effective (in my dad’s case, my designation as his POA began when he had his heart attack and was admitted to the emergency room). The Medical Power of Attorney is effective as long as the principal is alive.
You can find U.S. Living will forms here:
Durable Power of Attorney For Financial Decisions
A Durable Power of Attorney is a document that gives one individual the legal right to appoint another person to act on their behalf in financial affairs. However, it is not meant for health care decisions.
A Durable Power of Attorney gives the assigned person the right to make a single, specific financial transaction. This may include anything related to financial affairs, from selling stocks to managing the sale of an estate, depositing social security checks, writing checks, or opening and closing accounts. The person with the power of attorney can manage only those assets that are solely in the elderly’s name. A power of attorney does not affect the control of trusts or jointly held assets.
It may become effective immediately or may come into effect after a specific event in the life of the senior. For example, a lack of competency could be a reason for a Durable Power of Attorney to come into force. However, a doctor must attest that the person is incapable of making financial decisions in order for the financial POA to become effective until death.
If your elderly loved one receives Social Security, a regular POA form will not allow someone else to manage their SSI checks.
HIPAA Release Form For All Physicians
Another document on the legal checklist for aging parents is the HIPAA release form. Most clinics, hospitals, and dental or healthcare providers have their own release forms for patients, which authorizes the disclosure of all or a part of the principal’s health details.
For someone who is willing to plan in advance, it is important to contact all doctors’ offices or medical providers that you or your senior regularly visits. Inquire about their specific procedures and whether they issue any HIPAA release forms. In my parent’s case, each time they visited the hospital or a new physician, they were asked who (if anyone) they wished to name to be allowed to hear their medical information. Also, their primary care doctor updated this HIPAA release information annually.
While it may seem silly (and can be frustrating), if your parent does not name you in the HIPAA release, the treating medical personnel and facilities cannot give you any information about their condition.
A Current, Updated Will, Estate Plan, Or A Trust
Your elderly loved may decide to sign a will to control the distribution of their estate after their death. A will is a binding legal document that comes into effect after the death of the individual writing the will (known as a testator). The will divides the testator’s estate or property according to their wishes, however, they can only divide property that is solely in their name.
A trust is a legal document that allows one person to handle money and property in someone else’s behalf. The document clearly outlines how inheritance and money should be handled even after the owner’s death. A trust may be revocable or irrevocable, depending on the owner’s wishes to arrange the protection and disbursement of their assets.
Wills, estate plans and trusts do not apply to the distribution of retirement benefits, life insurance, joint property, or any other asset in trusts. In general, these items will have their own designation of beneficiaries. For example, when someone takes out an insurance policy, they name who they want to receive the insurance money after their death. Having a will does not override the beneficiary designation on the insurance policy.
If you prefer to take a do-it-yourself approach, you can find legal forms for wills in the U.S. here:
Will Forms for all States
End of Life Instructions
Without question, this is the toughest topic to talk about with your elderly loved one. But, it is necessary because you should honor their wishes and without having this conversation, you might never know what they want. Talking about end of life instructions also allows you to develop a care plan for when the inevitable happens.
Ideally, the senior should make advance care planning decisions about the kind of healthcare they want to receive at the end of their life (do they want to be on life support, etc.) This may also include other end-of-life instructions for loved ones to follow concerning the elderly parent’s last wishes, such as hospice wishes, organ donation, funeral wishes, and do not resuscitate (DNR) wishes.
DNR: A Do Not Resuscitate document directs healthcare providers not to provide cardiopulmonary resuscitation (CPR) to the individual in the event their breathing is interrupted or their heartbeat stops. Emergency medical professionals are also directed to discontinue advanced cardiac life support (ACLS) if their heart stops beating. The person writing the document is stating that they do not want to be put on life support. There may be variations to this concept from state to state.
Hospice Wishes: Similarly, the document on hospice care directs the medical staff to provide healthcare at home or hospital. Since hospice care is primarily a form of palliative care for a terminally ill individual, the document honors the person’s decision to receive hospice care.
Organ Donation: The elder might have some plans for organ donation. Their end-of-life instructions should include any directions for the family and for healthcare providers regarding the donation of specific organs. Medical professionals can assist bereaved family members in donating their loved one’s organs to honor the deceased’s wishes.
Funeral Wishes: Knowing your elderly loved one’s wishes with regard to burial, cremation, and funerals can alleviate some of the stress and pain following their loss. The document should inform family members about any burial plot that their loved one has already bought, along with the name, address, and contact information for the cemetery, plus the plot number and location.
Do they have a plan for a funeral? When my aunt passed, she wanted no tears, but instead wished for a lively New Orleans Mardi Gras-type of party. If she hadn’t talked to her children about this when she was placed under hospice care, we would have given her the somber, respectful funeral that etiquette dictates.
Seniors (and everyone) should keep their birth certificates somewhere that is accessible to their adult children or other loved ones. If they don’t have a certified copy of their birth certificate, one can usually be ordered from the county in which the person was born. Birth certificates are required for everything from obtaining a driver’s license or passport, to use as a voter ID in some states.
Deeds To The Home
Should the senior need to sell their house (or pass away and the house sale will settle the estate), can these documents be located?
Bank Account Information
Adult children should at least know at which institutions their senior parents do their banking. And, although this may not work for some families, I strongly recommend that the senior keep at least one bank account that is joint with an adult child, an adult grandchild, or someone they can trust with the money. The amount in the account does not have to be huge, but it should be enough to potentially help pay bills or funeral expenses should the b=person be unable to take care of their bills. If this is not in place, the senior’s relatives will be forced to either pay out of their own pockets until the person can resume taking care of their bills (or the estate is settled) or the accounts may go into collection.
My father had listed me as a joint owner on his accounts, so when he passed, my sister and I had funds available to pay for his funeral expenses and didn’t have to dip into our own money. Even though I cancelled his phone, cable, and gave notice on his apartment, those bills still had to be paid either up to the date of cancellation or until the 30-day notice was met (apartment). This could have been a financial hardship for us, had he not put me on the accounts.
In addition, there are millions of dollars in unclaimed money in bank accounts across the country that were owned by people who have since passed away (or have moved and forgotten they had the account). My mom was big on squirreling money away in bank accounts that periodically offered better interest rates. As a result, she had accounts in several financial institutions. Thankfully, she had made a list of the bank, their address, and the account numbers so I knew how to track down the money after she passed away.
Stocks, Bonds, And Brokerage Information
Just like bank account info, stocks, bonds, and brokerage accounts and contact information should be recorded somewhere.
Should the senior need medical attention, do you know who their insurance carrier is, aside from Medicare? Many seniors have a supplemental policy to cover what Medicare doesn’t. Do they have Medicaid, as well?
In addition, there should be a record of any life insurance policies, accidental death policies, etc.
Veteran’s Discharge Papers
My dad was a WWII veteran (Army) and my husband is a vet, too (Air Force). When they are discharged, vets receive discharge papers that are needed for such things as VA benefits, reduced mortgage rates, VA pensions, etc. In my case, my husband is retired from the Air Force, so I will need his discharge papers to claim my spousal benefits if he passes away before me.
In the case of a veteran, they can be buried in a military cemetery free of charge, if they were honorably discharged. You will have to provide their discharge papers to get this benefit. Also, my father was given military honors at his funeral and we received a free headstone plaque for his grave (again, we needed his discharge papers to get these honors).
Death Certificate Of Spouse, If Applicable
When my mom passed, we needed her death certificate to transfer everything that had been jointly owned by her and my father into accounts that were only in his name. We also needed it in order to sell their jointly owned home.
If the senior has been divorced, having divorce decree available will spell out any conditions that adult children should be aware of. Maybe the decree designates that one spouse covers the ex-spouse under their medical insurance, for example. This would come into play if the senior needed medical care.
Adult children or the relatives who are caring for an elderly loved one should be able to locate citizenship papers if the senior has become a citizen.
Pension Benefits, 401 (k), Annuity Names And Contact Information
My dad was a member of the Teamster’s Union. When he was 96, his Teamster’s life insurance ended (apparently, you’re too old to need life insurance if you are 96!). I didn’t even know he had that coverage until we got the notice (he had forgotten).
A patient of mine just recently began receiving his deceased mother’s pension benefits. He didn’t know he was even entitled to them, because he had no information about her benefits. The company actually tracked him down (which I find astounding!).
Knowing this information ensures that the individual and their heirs receive the benefits they deserve.
Debt Documentation, Including Information For Credit Cards, Loans, Purchase Contracts, Rental Agreements
These accounts will all need to be paid on if the person is in the hospital for a long period or is entering rehab, assisted living, or a long-term care facility. Additionally, someone will have to notify these accounts to cancel them, should the person pass away.
If your senior parent can no longer drive or becomes incapacitated, someone will need to sell their vehicle, so the title should be kept in an easily accessible place (and someone should know where that place is!).