Elder Law and You

Article submitted by Michael A. Manna, Esq. of Michael A. Manna & Associates, P.C. For further information or a consultation, please contact Mr. Manna at 201-447-2800, or visit us online at MAMannaLaw.com.

Seniors and their families can avoid future problems and uncertainty by making legal decisions ahead of time. The right legal documentation ensures that family members and health care providers know and fulfill desired wishes. These decisions often involve personal and business affairs and potential medical decisions. Since these issues can be complex, advance planning and discussion with relatives and a legal professional are extremely important.

Advance Directives

An advance directive is a written document stating your wishes regarding medical care if you lose the ability to make decisions for yourself. An advance directive ensures your right to accept or refuse medical care. Both federal and state laws govern the use of advance directives.

Federal law requires health care facilities that receive Medicare or Medicaid funds to inform patients of their right to refuse or select medical treatment and of their right to execute advance directives.

Although any form will suffice, the New Jersey legislature has created two standard forms. One is known as an “advanced directive” and the other a “medical proxy”. These forms can and often are combined into one document. Laymen call this a Living Will. The form must be witnessed by two witnesses or be notarized. These forms are available for free at hospitals and retirements residences, and from the Department of Senior Services in each county seat, throughout New Jersey. You can also have one drafted by an attorney.

An attorney is not required to complete either form, but you may want to consult an attorney or physician to ensure that you or your older relative has completed the form in a way that will be understood and followed. Advance directives are not required and may be revoked or changed at any time.

The New Jersey Medical Proxy.

This document lets you designate another person, usually a family member, close friend or counselor, to make medical decisions for you if you are no longer able to make or communicate decisions for yourself. The named agent may not be the person's physician or health care provider.

To make the document legal, it must be signed in the presence of two witnesses or be notarized. The person appointed through a medical proxy is authorized to make decisions any time a patient becomes incapacitated, not only at the end of life.

Advanced Directive.

This is New Jersey's recognized living will. It is called a living will because it takes effect while you are still living. It allows you to specify in advance your wishes about withdrawing or withholding death-delaying procedures in the event of a terminal illness, permanent unconsciousness or affliction with a degenerative disease, from which there is no recover (i.e. dementia, MS, ALS, etc). Personal instructions, such as the refusal of specific treatments, may be added.

Guardianship.

Seniors who are not fully able to make or communicate responsible decisions or otherwise manage their personal needs or their financial affairs may get help through a court-appointed guardian. Ideally, advance planning with family members and a lawyer specializing in elder law will eliminate the need for a guardian later. In some cases, however, having a guardian be responsible for decision making can be the best option.

Wills.

Preparing a will is the simplest way to make sure that funds, property and personal items will be distributed according to an individual's wishes. A will names legatees who will receive money and property on the person's death. The will also names an executor, the person who manages and distributes an estate after a death. This is often a family member or friend. The will must be in writing and should be signed in the presence of two witnesses, who must also sign as witnesses at the same time.

The executor initiates probate, the legal term for the process of proving the validity of the will. New Jersey has a relaxed probate procedure that can be done without an attorney, if the will has been properly prepared. Elaborate revocable living trusts, designed to avoid probate in New Jersey are usually unnecessary. Once the will is accepted by the Surrogate, it is admitted into probate and the executor is appointed. The executor locates assets, takes care of final income taxes and any required estate taxes, pays off creditors and distributes money and property according to the terms of the will.

Living Trust.

Since probate in New Jersey is reasonably benign, living trusts are less popular. However, if you own real estate outside of New Jersey or you are not a resident of New Jersey, probate can be a nightmare. Court costs, legal fees and the length of time involved in probate may often be avoided by setting up a living trust. A revocable living trust is a set of documents stating who controls your money and property while you are alive and how they will distributed after your death. Unlike a will, which only comes into play at your death, a revocable living trust provides for management while you are living.

When you set up a living trust, your money and property is transferred into the trust, and managed by the trustee for your benefit while you are alive, and for your named beneficiaries after your death. You can be the trustee until you are unwilling or unable to handle the duties of trustee. A successor trustee can take over if you become incapacitated, or upon your death. When you die, the property in the trust passes to the persons named in the trust.

A revocable trust can be changed at any time until your death. An irrevocable trust may not be changed, but may have tax or other advantages. One major advantage of a living trust is that probate may be avoided, and the courts will not be involved in the transfer of your estate.

It is best to consult a legal professional, preferably an attorney who specializes in drawing up these documents.