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Page Reviewed / Updated – January 07, 2021

It’s common for seniors to ask their children or caregivers to handle their financial affairs for them and deal with other practicalities such as arranging medical care. For privacy and security reasons, financial, legal and medical institutions require proof that those who are managing someone else’s affairs have their permission.

It’s a good idea for people to discuss these issues with their loved ones well in advance. Whether they’re a senior preparing for the future or a caregiver wanting to make sure their loved one’s interests are protected, arranging the required documents in advance gives everyone peace of mind. It also opens up the opportunity for conversations about medical treatment and end-of-life wishes.

Why Keep Legal Documents Ready?

Talking about ill health and end-of-life wishes isn’t easy, but it’s an important conversation to have, and it’s something that should be revisited occasionally so people know that they and the ones closest to them are on the same page.

Having legal documents prepared in advance means that people have the peace of mind that should they need someone to carry out important financial, legal or medical tasks on their behalf, they can do so. Without those documents, the law may decide that the duty of managing a person’s affairs goes to someone else, and that person may not be the one they expect or the one who knows what their wishes were.

What Legal Documents Should People Prepare?

There are several documents that people should prepare to ensure that those who care for them can assist in an emergency and ease the process of distributing their estate in the event of their death:

  • Medical directives: Preparing an advance health care directive, or living will, ensures that if someone can’t speak for themselves in a medical emergency, their loved ones can see that their wishes are followed.
  • A revocable living trust: This document allows a senior to retain control over their estate, transferring assets to beneficiaries while they’re still alive. In effect, the senior acts as an executor of their own estate. The main benefit of a revocable living trust is that it can be used to prevent the estate from having to go through probate upon the senior’s death.
  • A will: A will can be used in addition to, or instead of, a revocable living trust to ensure that all assets are distributed fairly and to help avoid disagreements among loved ones. Probate laws can be complex, so it’s a good idea to seek advice before writing a will or trust.
  • A durable power of attorney: A durable power of attorney allows a designated caregiver to manage someone’s affairs on their behalf. They need to draw up separate powers of attorney for health care and finances.
  • A HIPAA release: A HIPAA release form allows a designated caregiver to access someone’s health records and discuss their well-being with their physicians. Without this, medical professionals can refuse to share information about the patient’s health with third parties. People may need specific HIPAA release forms for each medical professional or health care establishment they deal with.

In addition to these documents, it’s a good idea to have clearly written accounts and to keep insurance information, bank details and other documents in a secure place that can be accessed by the person granted power of attorney.

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Legal Documents for Elders: Frequently Asked Questions

What should I do if I don’t have the documents in advance?

When someone is incapacitated and hasn’t nominated a power of attorney, that power is usually granted to a family member based on criteria set by the state. Each state has its own rules for who should be given power of attorney.

If there’s no eligible family member available, medical staff are usually allowed to make decisions based on what they believe is in the best interests of the patient. If the issue in question is a financial one, then family members must petition the courts to be granted access to manage the person’s affairs.

Where can I get help with these legal documents?

To get help completing the legal documents listed above, people should seek advice from a local elder law organization. Area Agencies on Aging can provide directions to organizations offering free or low-cost legal advice for seniors.

Do legal documents need to be updated regularly?

The law relating to power of attorney documents varies from state to state. In some states, power of attorney documents must be reviewed and updated every five years to be valid. People should seek advice from a professional who is well-versed in the law in their state to ensure that the documents will be accepted in an emergency.

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