Misinformation is rampant! You’ve heard the expression, “don’t believe everything you read on the internet.” Well, the sad reality is that misinformation is not just on the internet, but also comes from seemingly reputable individuals, professionals, and yes . . . even attorneys. Here are a few ill-advised suggestions we’ve heard recently:
The misinformation: “You don’t need an attorney to prepare your powers of attorney.”
“Why would you pay an attorney to do something you can get for free?” The reality is while there are many options for Do-it-Yourself legal documents you can download from the internet, these documents rarely allow your agent to do everything they may need to do in a crisis.
Yes, there are statutory form documents in effect in Georgia for the General Durable Power of Attorney for Financial Matters, as well as the Georgia Advance Directive for Health Care. However, even these statutory form documents don’t work if they aren’t executed properly.
Almost every week we see documents that might be okay, except that a family member served as a witness, or maybe it wasn’t notarized. If the document isn’t executed properly, the document will not be effective. This would obviously defeat the purpose of the documents and cause stress and obstacles for the family.
In addition, the basic “canned” documents may not allow your agent to do everything they may need to do in a crisis. It is imperative your General Durable Power of Attorney for Financial Matters allows for gifts, trusts, and the ability to apply for public benefits. Our financial power of attorney is twelve pages long . . . and for good reason.
It is crucial you have these documents prepared by an experienced and reputable elder law attorney so when you face a crisis, your agent can act. For a quick recap on the importance of a General Durable Power of Attorney, click here.
The misinformation: “You don’t need a Will.”
“You don’t need a Will, because if you die, your property is going to go to who you want anyway . . . your spouse.” The Georgia law tells us if you die and are married (and have no children), then yes, your estate goes to your spouse. However, if you are married and have two children, for example, then your spouse and each child would all get 1/3 of your estate. To learn more about Georgia inheritance rules, click here.
In nursing home Medicaid cases, it is critical the nursing home spouse doesn’t inherit from the well spouse. Why? Because it could kick the nursing home spouse off Medicaid since the rules and requirements are much more stringent for singles than for married couples. Therefore, it is generally advised the well spouse actually disinherit the nursing home spouse to ensure security of Medicaid benefits. Having no Will at all can lead to disaster! For an overview of important features of a Will, click here.
The misinformation: “A change in marital status doesn’t impact your legal documents.”
Hurley Elder Care Law always tells clients estate planning requires ongoing maintenance. You should have your documents reviewed (and potentially updated) when major events happen. One of those major life events, is a change in marital status. If your spouse dies, you divorce your spouse, or you remarry, you MUST update your legal documents—let’s look at an example:
Helen is a widow, and she names her adult children (in order), 1) Susie and 2) John to act as her agent on her Georgia Advance Directive for Health Care. Six months after executing this document, Helen reunites with her high school sweetheart, Tom, and they decide to marry. A few months into the marriage, Helen suffers a stroke and is hospitalized. Who is the decision-maker?
Her children are shocked to learn Tom, the new spouse, is the rightful decision-maker. With the Georgia Advance Directive for Health Care, a subsequent change in marital status revokes this document. Therefore, health care providers must look to the Georgia next-of-kin law. If Helen wished for her children to remain in that role, she should have re-executed her Georgia Advance Directive for Health Care after she remarried.
The misinformation: “If you are not married, but have children, your oldest child is the decision-maker.”
This is simply not true. The reality is if you do not have proper estate planning documents in place, or if an event has occurred to revoke your documents, Georgia’s next-of-kin law tells us all your children must come to a consensus regarding your treatment. What are the odds everyone is on the same page when it comes to their loved one’s care?
The misinformation: “If you pursue conservatorship over a loved one, you cannot pay yourself back for a conservatorship.”
Proper estate planning documents are a key part of any good life care plan. However, there are times when a conservatorship is the only option. Perhaps the General Durable Power of Attorney for Financial Matters didn’t allow for certain aspects of Medicaid planning, or maybe the family members are at odds over who should really be in charge.
If a family member seeks conservatorship over their loved one, and is successful and that conservatorship is granted, the newly appointed conservator can be reimbursed for the fees associated with the conservatorship proceeding. For more on guardianship and conservatorship, visit our website here.
The reality: Misinformation is everywhere!
In creating your own life care plan, you should ensure you reach out to a trusted, and reputable, elder law attorney to assist your family. Trust the experienced team at Hurley Elder Care Law to assist with all your life care planning needs! Call us for a complimentary phone consultation with our intake specialist at 404-843-0121 to discuss your situation.
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