A SENIOR CITIZEN’S GUIDE TO

BASIC PERSONAL PLANNING:

Answers to the Most Frequently Asked Questions

by Karen C. Buck, Esq.

SeniorLAW Center

SeniorLAW Center has served the legal needs of thousands of seniors on limited incomes in Philadelphia, helping them with a wide variety of legal problems, including their personal planning needs, by drafting simple wills, advance health care directives, and powers of attorney.  Please remember that the following provides general advice only.  It is always advisable to consult with your own attorney to discuss your individual needs and options. 

What is personal planning for the elderly?

Personal planning for the elderly is planning for the end of your life as well as the rest of your life.  It enables you to select the person of your choice to act on your behalf and ensures that your wishes will be followed if the time comes when you can no longer manage your affairs or make decisions for yourself.  We will discuss some of the ways you can plan for the rest of your life and help your loved ones do the same.

WILLS

What is a Will?

A will is a legal document which determines the distribution of your property after your death.  Those who receive property pursuant to your will are called “Beneficiaries.”  The person who is responsible for various tasks associated with administering and distributing your estate is known as the “Executor.”

            Do I need a Will?

Although a will is not required, it is strongly recommended for a number of reasons:

1) A will gives you personal control over the distribution of your property and an opportunity to state your wishes upon death;

2) A will can provide for contingencies if a beneficiary predeceases you or certain property no longer exists;

3) A will makes it easier for your family or loved ones to deal with your estate after your death -- at a time of grief and loss, such planning is greatly needed and appreciated;

4) A will names an executor, who will have control over filing the will, paying debts of the estate, and locating and distributing your property.

What happens if I die without a Will?

In Pennsylvania, if you die without a will, your estate is distributed according to laws known as intestacy laws.  These determine how and to whom your estate will be distributed and establish preferences for selecting the person who will administer the estate.  People who are not related to you by blood or marriage cannot inherit from you unless you have a will.  Similarly, you have no control over who in your family inherits or what they inherit unless you have a will.

LIVING WILLS

What is a Living Will?

A living will -- also called an "advance health care directive" -- is a legally valid document which states and explains your preferences about what kind of medical treatment you do and do not want to receive if you should become permanently unconscious or terminally ill and cannot speak for yourself.

What are my options in a Living Will?

There is a checklist in your living will indicating specific treatments you may accept or reject.  You may also appoint a "surrogate" -- someone to act for you and ensure that your wishes are carried out.  Finally, you can indicate whether you wish to be an organ donor upon your death.

POWER OF ATTORNEY

What is a Power of Attorney?

A power of attorney is a document in which you, the grantor, designate another person to act on your own behalf, either now or when you become incapacitated.  The person granting the powers is called the "principal," and the person who is given the powers is called the "agent" (previously known as the “attorney-in-fact”).

Will a Power of Attorney remain effective if I should become incapacitated?

Only a "durable" power of attorney will remain valid if you should become incapacitated.  In Pennsylvania, a power of attorney is presumed to be durable unless the document states otherwise.   A “springing” power of attorney becomes effective only when you become incapacitated or unable to make decisions on your behalf, as determined by one or more doctors.

What powers can be granted to the Agent in the Power of Attorney?

Health Care Issues:

• The power to make decisions about health care, hospitalization  and institutionalization

• The power to authorize your admission to a medical, nursing, residential or other facility

• The power to refuse or accept treatment on your behalf

Economic Issues:

• The power to write checks and pay bills

• The power to apply for benefits; buy services; make gifts; initiate lawsuits; create trusts; fill out tax returns and transact all kinds of other business

• The power to rent, mortgage or sell real estate

Do I have any control over when a Power of Attorney begins or ends?

A Power of Attorney can be created to become effective upon the occurrence of certain events; this is  known as a "springing" power of attorney.  For example, the power may only become effective when you are determined to be incompetent, unconscious, or seriously ill.

A Power of Attorney can also be created for a limited amount of time only, such as a period during which you are hospitalized. 

It is important to remember that you may revoke a Power of Attorney at any time, as long as you still have the capacity to do so. 

What are the advantages of having a Power of Attorney?

A Power of Attorney is an excellent planning document because it is flexible, personal, carries great weight, and is encouraged by Pennsylvania law.  Often, it can prevent the need for a drastic and expensive proceeding such as guardianship.

A Power of Attorney can and should be a document tailored to your needs and circumstances.  “Form” Power of Attorney documents from a store should generally not be used.

What are the disadvantages of executing a Power of Attorney?

The major disadvantage is the possibility of exploitation by the agent, which can occur if there is a lack of supervision and oversight.  The wrong choice of an agent could lead to abuse of the powers.  As such, you must select your agent very carefully.  He or she should be someone who is trustworthy, responsible, and honest.  In addition, it is essential that you carefully identify the powers you are granting, rather than giving general, unlimited powers to another.  Pay attention to what actions your agent takes while you have capacity!

GUARDIANSHIP

What is a Guardian?

A guardian is a Court-appointed individual who is empowered by the Court in situations where your capacity to make and communicate decisions becomes partially or totally impaired.  These powers may include:

• Your general care, custody and maintenance

• Handling your financial affairs

• Designating the place where you live-Providing required consents or approvals on your behalf           

When does a Court appoint a Guardian?

A Court will issue an order to appoint a guardian where a petitioner has begun incompetency proceedings against you and has proven that your capacity to make and communicate decisions has become partially or totally impaired.

Who may be appointed as Guardian?

Any person interested in your welfare may petition for guardianship.  The Court may appoint the petitioner as guardian.  It may appoint a person that you may not have wanted at all.  If there is considerable property, the Court may not appoint a family member as guardian but may choose a stranger, often an attorney.

How can I avoid the necessity of Guardianship or incompetency hearings?

The best way to avoid the expensive and often difficult remedy of guardianship is to make a properly-executed financial or medical power of attorney and/or living will.  

We hope this information proves helpful to you or someone you know.  We at SeniorLAW Center advise everyone to give serious consideration to their personal planning needs before such important decisions have to be made.  No matter what your age or the extent of your estate or belongings, such planning allows you to control the various stages of your life, in advance, and provides peace of mind that your wishes will be followed.

SeniorLAW Center assists many elders with legal problems concerning personal planning.  Elders can discuss a legal problem or get information by calling SeniorLAW Center’s telephone intake line 215-988-1242 Mondays through Fridays, 9 a.m. – 1 p.m., or coming to our center city offices, Mondays through Wednesdays, 9 a.m. – 4 p.m.  Most issues can be addressed initially over the phone.  For general information, please call us at 215-988-1244 or visit our website at www.seniorlawcenter.org.    

Karen Buck is an attorney and SeniorLAW Center’s Executive Director.