Home from the Holidays – Now What? (Part II) - Promise Law
Estate Planning

Home from the Holidays – Now What? (Part II)

By 21 Feb, 2019 June 25th, 2019 No Comments

Okay, so you spent time with relatives recently and during the visit you found yourself thinking “things aren’t quite right” and then you confirmed that your loved one can’t handle their affairs anymore.  Below are questions our clients often ask us when they are trying to help their loved ones who may be struggling with decision-making, finances, or caring for themselves.

Who Can Make Medical Decisions?

If your loved one is unable to make her own medical decisions as measured by the ability to understand and give informed consent, then the nominated Agent under her Advance Medical Directive (AMD) (also called a Health Care Power of Attorney or Medical Power of Attorney) makes the medical decisions.

If your loved one does not have an AMD, or if the Agent is unavailable, unable, or unwilling to make the medical decisions for your loved one, then Virginia law permits, but does not require¸ health care providers to allow family members and other people, in a statutory-priority order, to make medical decisions on the other individual’s behalf.  Note that for classes of relatives, such as “adult children,” medical decisions are made by a majority in the event of disagreements.

If the incapacity is short term, the statutory priority of medical decision-making may suffice as long as the health care organization permits it.  Once your loved one is again able to make her own medical decisions, she should be encouraged to execute an Advance Medical Directive.  For longer periods of incapacity or when the health care organization does not recognize the statutory priority, then the best alternative may be to petition the Circuit Court for the appointment of a Guardian to make the incapacitated individual’s medical, residential, rehabilitation, personal care, and related personal decisions.   Guardians report to the local Department of Social/Human Services.

Who Can Manage the Finances?

If your loved one is not able to manage his own finances, then the Agent under his Durable Power of Attorney (POA) usually has the authority to do so.  If your loved one does not have a POA, but is able to understand what a contract is, then he may still be able to execute a POA.  If there is no POA and your loved one does not have the capacity to execute one, or if the POA does not grant all the powers needed, then the best alternative is to petition the Circuit Court for the appointment of a Conservator who can manage the individual’s finances, assets, and property.  Conservators report to the local Commissioner of Accounts.

If your family member can no longer serve as Trustee of her Trust, the Trust likely names a successor Trustee and explains how the prior Trustee is removed and the successor Trustee accepts his new role.  Alternately, the Trust may allow the Trustee to appoint a co-Trustee to serve alongside the appointing Trustee.

Federal government retirement or other benefits may be able to be managed by a Representative Payee who receives and manages the pension or other benefits on behalf of the retiree who cannot adequately manage them himself.  Representative Payees are accountable to the agency that appointed them.    The Social Security Administration appoints Representative Payees to manage Social Security Retirement, Survivors, and Disability benefits along with SSI (Supplemental Security Income) benefits.  The Office of Personnel Management (OPM) appoints Representative Payees to manage federal civil service pensions.  The Defense Finance and Accounting Service (DFAS) appoints the Representative Payee to manage military retirement income. Finally, the Department of Veterans Administration (DVA) appoints the Representative Payee to manage benefits payments received from the DVA.

Some services offer prepaid debit cards that can be customized to allow (or prohibit) certain categories of purchases, set dollar limits, or tailor the type of merchants where the card can be used.  These cards, such as the True Link Card, offered by True Link Financial, may be a good option for an individual who remains able to live (semi-) independently in the community, but is also susceptible to poor financial decision-making or vulnerable to financial scammers.

Finally, despite other efforts, a Conservatorship may be necessary to ensure that an accountable person is able to manage the individual’s financial affairs, or to stop the individual from being financially exploited when the individual is unable to protect herself.

Who Can Evaluate Their Driving?

Driving is an activity that can be difficult for anyone to give up because the inability to drive often leads to isolation, depression, and a loss of independence.  No estate planning document can help evaluate an individual’s ability to drive or stop someone from driving.

If you have concerns about a family member’s ability to drive safely and if she will not willingly stop driving, then you may want to discuss your concerns with her doctor to see if restricted driving (perhaps not after dark) is an option.  The Riverside Center for Excellence in Aging and Lifelong Health, located in Williamsburg, has a driving simulator that is used to assess whether a driver (of any age!) is safe to drive as well as identify driving skills that need improvement.

You (or her doctor) can alert the DMV about your concerns by submitting its “Medical Review Request” form (https://www.dmv.virginia.gov/webdoc/pdf/med3.pdf).   The DMV will not inform the driver who submitted the form if it was submitted by a relative or a licensed medical professional who is treating the individual.  The DMV will ask the person on whom the report was filed to schedule a driving test; failure to follow up will result in an administrative suspension of her license.

We know that watching a family member decline is stressful, even more so if they waive off assistance or if you do not have the proper authority to assist or make decisions on their behalf.  Promise Law is here to help you!  We can discuss your options, petition for Guardianship and/or Conservatorship, develop plans to access long-term care, and/or review your loved one’s existing estate planning documents to evaluate if they meet his or her needs.  Call us at (757) 690-2470 to schedule a consultation appointment.