Thinking Ahead – Tips for Seniors on Life-Planning Documents

Everyone wants to feel that their wishes are heard and respected in decisions made by others that affect them – especially when those decisions involve their health, finances, and last wishes. Although many seniors are able to continue making decisions throughout their lives, it is particularly important as people get older to have legal documents in place if this is not the case. The documents authorize someone of your choice (your “agent”) to speak and act on your behalf if you cannot do so because of a decline in your physical or mental health and may avoid the need for guardianship proceedings. Without them, very personal decisions could be made by a relative that you would never have chosen, or by someone who is a stranger to you.

This blog post provides some useful tips to help you prepare your life planning documents in an informed and timely manner.

What Documents Do I Need?

Before contacting an attorney to assist you, it is important to know what the main life planning documents are and what they do:

• Health Care Proxy: enables your agent to speak to doctors on your behalf about your medical treatment if you cannot do so;
• Living Will: allows you to express your wishes about care in an end-of-life medical situation as guidance for your agent and medical providers;
• Power of Attorney: authorizes your agent to take care of your banking, housing and other non-medical issues;
• Appointment of Agent to Control Disposition of Remains: enables your appointed agent to handle your funeral and burial wishes as expressed in the document: and
• Last Will and Testament: appoints an Executor to distribute your property as you would wish.

Things to Consider Before Preparing Life-Planning Documents

Now that you have an idea of the types of documents you would like to prepare, start considering questions, such as:

• Who would you like to appoint as your Executor(s) and beneficiaries in your Will and agent(s) in your Health Care Proxy, Living Will, Power of Attorney, and Disposition of Remains Document?
• Have you talked to your potential Executor(s) and agent(s) about your intent to name them in your documents and discussed your wishes?
• What would you like to instruct your agent(s) to do in medical and non-medical situations in the event that you become unable to make decisions or manage your affairs?
• What do you own and who do you intend to leave it to?
• What sort of funeral and burial arrangements would you prefer?

When thinking about the people who you would like to name as beneficiaries in your Will, it is important to note that, under New York law, you cannot disinherit your spouse simply by failing to mention them or stating that you wish to leave them nothing. Unless you are divorced or legally separated, your spouse has the right to claim a share of your estate, except under very limited circumstances. In New York, the spousal elective share is $50,000 or 1/3 of your estate – whichever is greater.

Can Someone With Dementia Prepare These Documents?

If you are assisting a family member or friend to find help to prepare their life planning documents, it is important to note that they must have the required level of legal capacity (ability) to understand the nature and purpose of the document(s) and the consequences of signing them. For this reason, it is extremely important to plan ahead and prepare life planning documents early on in case your loved ones develop conditions such as Alzheimer’s disease or dementia or are otherwise unable to meet the required capacity levels.

Can I Prepare These Documents Myself?

Although blank forms are available and may look “simple” to complete, it is important to seek legal advice rather than attempting to prepare them by yourself to avoid confusion and mistakes that may only be discovered when the documents are urgently needed. By then, it may be too late for you to remedy these errors. In addition, experienced attorneys can provide essential advice on estate planning options in general that you may not have considered.

Prepare To Meet With Your Attorney

Once you have found an attorney to help you prepare your life planning documents we recommend that you take the following information to your first meeting:

• The names, addresses, and contact phone numbers of anyone you plan to name in your documents. This would include the beneficiaries and executor(s) for your Will and the person(s) to be named as your agent(s) in your Health Care Proxy, Power of Attorney, and Disposition of Remains Document.
• A “family tree” or list of your ‘blood’ relatives (even if you do not intend to include them in your Will). This would include siblings, nieces and nephews.
• A list of what you own and intend to give away (e.g. jewelry, electronics, furniture, etc.).
• A copy of the share certificate, if you live in a co-op.
• A copy of any property deeds, if you own a home or land.
• A list of your financial assets, the names of the bank(s) and companies, and the type of accounts (e.g. bank accounts, 401k, IRA, money market, shares, etc.)

After Signing Your Life-Planning Documents

Make sure to keep the original documents in a safe place. While you can give copies of your documents to your Executor(s) and Agent(s), it is crucial that they know where to find the originals and can quickly access them in the event of your illness (or death, in the case of your Will or Disposition of Remains). In order to settle your estate, your Executor will need the original Will quickly, so do not store it in a safe deposit box unless your Executor, or someone else, is a joint owner of the box with the right to continue accessing it after your death.

Where Can I Get Help?

The City Bar Justice Center provides low-income seniors with free legal assistance to prepare these vital documents. To see if you are eligible, please call: 212-382.6658. If your income and assets mean you are ineligible for assistance through the project, please call the NYC Bar Legal Referral Service at 212-626.7373 for a consultation with a private attorney.

Alexa Tovar is the Project Coordinator for the City Bar Justice Center’s Elderlaw Project.