Lincoln ElderCare Resource Handbook
Legal Issues
Advance Directives
Advance directives are written guidelines directing future care in case an individual cannot make or communicate a medical decision. The primary emphasis is usually on end of life care. The most common types of advance directives are Living Wills & Healthcare Powers of Attorney but others have become more prominent in recent years.
Living Will
A Living Will is a legal document that indicates the individual’s wishes regarding end of life decisions, i.e. CPR, ventilators and feeding tubes. They can be specific or more general and only become active after the individual has been determined to be unable to make or communicate a medical decision.
The Medical Directive
The Medical Directive is a document that describes six case scenarios for advanced medical decisions. The scenarios are associated with commonly considered medical procedures and interventions. The individual may check various procedures that he or she wants, does not want, or is not sure about.
Five Wishes
Five wishes is a legal document that lets your family and doctor know your health care decisions and wishes and that meets legal requirements in Nebraska. The “Five Wishes” include: (1) the person you would like to make healthcare decisions on your behalf, (2) the kind of medical treatment you would want, (3) how comfortable you want to be, (4) how you want people to treat you and (5) what you want your loved ones to know. An online version can be found at www.agingwithdignity.org.
Code/No Code – Do Not Resuscitate (DNR) Order
Code/No Code is a medical order that states whether an individual wishes attempts to be made to restart his or her heart and lungs in the event that they stop working. It is also known as a DNR Order. Hospitals and care facilities often ask terminally ill patients or their agent to write a Code/No Code order for their medical record.
Powers of Attorney
Powers of Attorney (POAs) are legal documents that appoint trusted persons to assist with medical and/or financial decisions and determines how much power that individual will have. If a Power of Attorney is durable, it will remain in effect after the individual is deemed incapable of making decisions on their own. That person is known as a Power of Attorney.
Healthcare Power of Attorney
A Healthcare Power of Attorney (HCPOA), or Medical Power of Attorney, appoints a trusted agent to make medical decisions for an individual who cannot make or communicate a needed medical decision. An HCPOA has the same rights to accept or reject treatments that the individual would have. They may provide instructions for desired end of life care, authorize access to medical records, admit the individual to hospitals or care facilities, and relay feelings regarding hospice care, medical procedures, organ and tissue donation or funeral instructions. A physician must provide documentation regarding the incapacitation of the individual before the HCPOA will become effective.
A Healthcare Power of Attorney must be written as well as signed and either witnessed by two adults or notarized. It must be revoked in writing and written notice provided to anyone with a copy of the HCPOA. A Healthcare Power of Attorney prepared in another state is honored in Nebraska. Contact an elder law specialist for more information.
Financial Power of Attorney
A Financial Power of Attorney (FPOA) appoints a trusted agent to manage finances and property for an individual. An FPOA can be granted to a spouse so they may manage or access the other spouse’s individually owned assets. The FPOA may also help with paying bills or property management if the individual is unable to manage these independently.
A Financial Power of Attorney must be written as well as signed and either witnessed by two adults or notarized. It must be revoked in writing and written notice provided to anyone with a copy of the FPOA. Contact an elder law attorney for more information.
The HCPOA and FPOA may be the same person or two different people. If different, they must be able to work closely together.
Guardianships and Conservatorships
If an incapacitated individual does not have powers of attorney in place or will not cooperate with the appointed POAs, the local court may appoint a Guardian or Conservator to assist and protect the individual.
Guardianship
An interested party may petition the court to appoint a Guardian to assist an individual whom doctors find unable to manage their health or daily needs. Family and friends or community volunteers may serve as the Guardian. The Guardian must work within the individual’s resources to provide food, clothing, shelter and healthcare. A Guardian must report annually to the court regarding the individual’s condition and progress.
Conservatorship
An interested party may petition the local court to appoint a Conservator to assist an individual whom doctors find unable to manage their property and finances. Family and friends or community volunteers may be asked to serve as a Conservator. The Conservator will use the individual’s assets to pay for medical cares and support and may apply for government benefits to assist with these costs. The Conservator must file a detailed annual accounting report for review by the court.
The Guardian and Conservator may be the same person or two different people. When two different individuals are appointed, they must be able to work closely together. Contact your local court for rules and regulations for Guardians and Conservators or contact an elder law attorney for more information.
Probate, Wills and Trusts
Powers of Attorney lose their authority to act when the individual dies. After death, the estate will often go into probate and the assets of the deceased individual are controlled primarily by his or her Will or Trust.
Probate
Probate is a legal process that takes place after an individual’s death. In Nebraska, the county courts have jurisdiction over all probate cases. Probate courts admit wills, appoint personal representatives, oversee the accounting and distribution of the estate and preside over any will contests that may be filed.
Wills
A Will is a legal document that appoints someone to administer their estate, a personal representative, and says to whom assets should go. If an individual dies without a will, state statutes determine the distribution of assets. A personal representative must still administer the estate. A will must be prepared, signed and witnessed by at least two individuals as required by state law.
Trusts
A Trust is a legal entity created by the individual to hold title to his or her assets. All assets are transferred to the trust. The individual may manage their own trust or the trustee may manage assets during the individual’s lifetime in case of illness. When the individual dies, the trust continues to own the assets and the beneficiaries bypass the probate process in obtaining assets. If an individual creates a trust, he or she typically will still create a brief accompanying will. An attorney can provide advice as to when a will alone is adequate and when a trust might have advantages.
Legal Assistance
Private Practice Elder Law Attorneys
Consult your phone book for further listings.
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