As we grow older, all of us face the possibility that one day we may become
incapacitated mentally. The time may come when we are no longer able to make our own
health care decisions, manage our own financial affairs, or act on our own behalf.
When that happens, you and your property must be protected, and people should
honor your wishes wherever possible. How and where do you want to live? What
decisions can you make? What decisions should you leave to someone else? Whom do
you want to make decisions for you? Several alternatives will ensure that people respect
your wishes whenever possible. Through planning, the decisions made on your behalf can
be those you would have made yourself.
A Legal Test of Capacity
There is no universal legal test of mental capacity or incapacity. Laws vary from
state to state, but some general principles apply everywhere.
Incapacity is always evaluated in connection with specific tasks. The question is
always, “Incapacity to do what?” Different legal standards of capacity may apply to
different tasks, such as capacity to do a will, to drive, to enter contracts, to manage money,
or to make medical decisions. In a typical guardianship proceeding, most but not all states
use a two-part test to determine incapacity (sometimes called incompetency). First, some
type of disability must be verified, for example, mental illness, mental retardation, and/or
Alzheimer’s disease. Second, there must be a finding that the disability prevents the person
from performing activities essential to take care of his or her personal needs or property.
Most courts will also insist that all feasible alternatives to guardianship have been
explored before appointing a guardian.
Financial Management Issues
Q. What may I do to make sure that people consider my wishes if I become
A. You should make plans now, while you have capacity, to be sure your wishes
are met. Several planning tools guarantee you a voice in your future. If incapacity strikes,
these tools will name the person you want to act on your behalf and/or tell other people
how to care for you and your property.
There are different types of planning tools. Some–such as the durable power of
attorney, joint property arrangements, and living trusts–cover your property and financial
affairs. Others, known as the advance directives for health care, address your health care
concerns, including decisions near the end of life.
The details of creating these documents vary from one state to another. However,
some general principles apply.
Durable Power of Attorney
Q. What is a power of attorney?
A. It is a written document in which you (the “principal”) grant certain authority to
another person (the agent or “attorney in fact”) to act on your behalf. A power of attorney
may be very specific, authorizing a person only to sell a car for you, for example. Or it can
be very broad, allowing the agent to do almost anything on your behalf. Traditionally,
powers of attorney were used to authorize a trusted family member, friend, or attorney-atlaw
to act in your behalf in financial matters–the sale of real estate, the making of
investments, and so on. When drafted to cover all financial matters, this authorization is
called a “general power of attorney.”
Q. Will a power of attorney be valid when I become mentally incapacitated or
A. A power of attorney normally is not valid if you become incapacitated, unless
you use a “durable” power of attorney. A durable power of attorney clearly states that you
intend the power to continue if you become disabled or incapacitated. It generally remains
in effect until you deliberately revoke it or until you die. However, in some states, your
durable power of attorney is terminated if a guardian is appointed for you (although
appointment of a guardian is usually unnecessary because the durable power of attorney
takes care of the management of your affairs).
Q. Whom should I name as my agent under a durable power of attorney?
Does the person have to be an attorney-at-law?
A. Your agent does not have to be a lawyer. In most states, it can be any adult or
an institution. However, it should be someone who knows you well and whom you trust
completely to manage your affairs. After all, decisions made by your agent can have
tremendous consequences for you. Your agent has to carry out your wishes and always act
as you would choose or with your best interests in mind. If there is no one whom you trust
with this power, it may be best not to draw up a power of attorney. Other planning tools
may suit you better.
You may name multiple agents who exercise all or some of the powers jointly (that
is, all must agree) or separately (that is, any one may act). With multiple agents, some
process for handling disagreements among agents should be considered, so that
disagreements do not undermine the usefulness of the power. In all cases, it is a good idea
to name an alternate to serve as your agent in case your first choice becomes unavailable.
Q. What if I do not want a power of attorney to take effect now, but only if I
become disabled or incapacitated?
A. In general, a durable power of attorney becomes effective when you sign it.
However, you may tell your agent not to act until you become incapacitated or disabled. If
your agent acts prematurely, you still have the right to act on your own behalf and you
may revoke the durable power of attorney at any time if you still have capacity. It may be
possible to write your durable power of attorney so that it becomes effective only if you
become incapacitated. This is called a “springing power of attorney.” Many states allow
you to write this type of durable power of attorney. Consult a knowledgeable lawyer to
find out what is possible in your state.
Q. Do I need a lawyer to write a durable power of attorney?
A. While not required, a lawyer is advisable for drafting your durable power of
attorney for property. A lawyer should make sure that your document meets your state’s
requirements and that the powers you wish to give your agent are actually spelled out in
language that will be legally effective.
Some powers may not be presumed to be within the scope of the power of attorney
unless they are specifically spelled out–for example, the power to make gifts or loans or
file tax returns. Some states require a specific format or specific wording in the document.
Certain states provide a “short form durable power of attorney” that allows you to check
off the powers to be granted to the agent, with state law providing an interpretation of
what each power means. Even with these simplified forms, legal consultation is advisable.
Revoking a Power of Attorney
If you change your mind about whom you want as your agent under a power of
attorney (durable or not), you may revoke the document. In fact, while you are capable,
you may revoke a power of attorney at any time for any reason. Simply notify the person
you have named to act as your agent. For your protection, it is best to do this in writing.
You also should destroy all copies of the power of attorney and notify in writing any third
parties with whom this person might have done business. Where substantial assets are at
stake, you may also want to file a document called a “Revocation of Power of Attorney” in
the public records where you live or own real state, and maybe even in the local
newspaper(s) if business interests are at stake.
Q My father has Alzheimer’s disease. I would like him to appoint me to act
for him under a durable power of attorney, since he can no longer manage on his
own. May he do this now or is it too late?
A. It is up to your father to decide if he wants to give you his power of attorney.
And it may be too late. Durable powers of attorney and other planning tools must be made
while a person is still capable. This is why advance planning is so important.
However, just because doctors diagnose someone as having a specific disease does
not mean that the patient is necessarily incapacitated. Also, incapacity does not affect all
functions in the same way. Thus, even people in the early stages of a disease such as
Alzheimer’s have the capacity to make some decisions. They also may have more capacity
at certain times of the day than at others, or their capacity may be affected by medications.
Capacity must be assessed on a case by case basis. If your father is willing to see a
lawyer about writing a durable power of attorney, the lawyer can help assess whether your
father understands the purpose and consequences of the durable power.
Q. Who decides whether I’m incapacitated?
A. You can specify how you wish to have your incapacity and mental status
determined if the need should arise. For example, in your durable power of attorney you
can name a doctor to make this determination, or you can say that two doctors must decide
whether you have capacity. Any doctor or clinical psychologist who makes evaluations of
capacity should have experience in this area. If you provide no instructions, then a court
might ultimately decide the issue, guided by generally accepted standards used by other
courts in making these determinations.
Q. What is a “living trust”?
A. A living trust (also called “inter-vivos” trust) is an arrangement under which
you transfer ownership of all or part of your property to the trust during your lifetime. As
the person establishing the trust, you are called the “grantor” or “settlor.” You name a
“trustee,” who manages the property according to the terms of your written trust
document. The trustee may be an individual or an institution or yourself. The trust is for
the benefit of one or more persons, including yourself, called the “beneficiaries.”
Frequently, a will is used to set up a trust (called a testamentary trust) that becomes
effective after the death of the person establishing the trust. A living trust, however, is
effective during the lifetime of the settlor, although it may be written to continue beyond
the lifetime of the settlor. In a living trust, the settlor and/or members of his or her family
usually are the beneficiaries of the trust. A living trust may be revocable or irrevocable.
Q. What is a living trust useful for?
A. Living trusts are one way of ensuring that someone (a trustee) has the legal
authority to manage your estate properly if you become incapacitated or simply do not
wish to manage your own estate anymore. They may also be used to avoid probate
proceedings after the death of the person establishing the trust. They are especially useful
where there is a substantial amount of property and professional management is desired.
Like the durable power of attorney, a living trust may make it unnecessary to have a
guardian or conservator appointed to manage your financial affairs. However, a trust is
generally more expensive to create and to manage than a durable power of attorney.
Q. How may I use a living trust to plan for possible incapacity?
A. You may design a living trust so it takes effect only if you become
incapacitated. In this way, you keep control over your affairs until the proper person
determines that you are incapacitated. As with a durable power of attorney, the process for
such a determination should be spelled out in the document.
You may also write your living trust so that it is effective before you become
incapacitated and continues even after you lose capacity. For example, you might name
yourself as trustee and manage the trust’s assets while you have capacity, but name a
successor trustee who will take over for you if you become incapacitated. Again, you
should designate in the trust document how that determination of incapacity should be
Q. I thought a trust simply paid an allowance to someone. If I need a trust
because I cannot manage my own finances, how would this help me?
A. Some trust arrangements do just pay a sum to the beneficiary periodically.
However, you may design a living trust in which the trustee handles many of the daily
tasks of managing the estate, including paying bills and taxes. You may state in the trust
agreement exactly what you want the trustee to do, how you want your assets managed
and how much discretion you want to give your trustee.
Q. Is a living trust just for someone who is incapacitated?
A. No. While it’s an excellent way for someone to plan and avoid the need for a
guardian or conservator of the estate, a living trust also is useful for someone who wishes
to turn over financial management of his or her affairs to another person.
Living trusts may have significant tax consequences, and may or may not reduce
the amount of your estate that is subject to the probate process after your death. In
addition, trusts may have an affect on your eligibility for Medicaid payment of your
nursing home care. Trusts are very complicated; considerable caution is required in
making them and the assistance of a lawyer is highly recommended.
To find out more about living trusts, contact an estate planning lawyer in your
state. He or she will be able to give you particulars about how your state’s laws affect such
trusts and about the consequences of making a trust.
Q. My father has a lot of money in his estate, but he is becoming increasingly
forgetful every week. May he still write a living trust?
A. Like the durable power of attorney, people must prepare living trusts while they
still have the capacity to do so. First of all, your father must want to make a trust. If he
does, his lawyer may determine his ability to make a trust agreement. Sometimes, this is
done by having him examined by a family physician or perhaps a gerontologist. His
lawyer will know what standard of capacity must be proven. If your father does not have
that capacity, he cannot make and sign a living trust.
Q. May I decide that I want to change, or revoke, a living trust arrangement?
A. It depends on whether the trust is revocable or irrevocable. If your trust is
revocable and you still have capacity, then you always may change or even revoke it
completely. An irrevocable trust cannot be changed or revoked.
Q. How may I ensure that my trustee will manage my affairs properly after I
A. Your trust instrument should contain specific instructions. You should include a
precise statement of what the trustee should do on your behalf, and specify the trustee’s
particular duties, responsibilities, and limitations.
Q. My wife and I hold most of our assets in common. May I still draft a living
trust to protect my share of the estate?
A. Yes, but take care to ensure that the trust does not violate the rights or interests
of your wife in her portion of the estate. You may do this through careful drafting of the
document and sound financial planning before incapacity. You and your wife may need
separate counseling and planning advice, as your interests may conflict with each other.
Q. It sounds as though a living trust is a very complex type of financial
planning tool. Who can help me decide if one is right for me?
A It is best to consult with a lawyer or a trust officer familiar with living trusts to
determine if one is right for you. Do not rely solely on mail-order or do-it-yourself trust
kits, as they may contain information that is misleading or inappropriate for your
circumstances or your state’s law. There is more information in the chapter, “Estate
Q. I have most of my property and bank accounts held jointly with my spouse
and an adult child. Isn’t this good enough to ensure management of my property if I
A. No. Joint ownership, or joint tenancy with right of survivorship, is a common
and simple form of ownership for property such as one’s home, cars, securities, and bank
accounts. It is a convenient way to allow another person access to property or money you
have in a bank account or to deposit or write checks on your behalf. However, joint
ownership is not a substitute for other planning tools because it has serious disadvantages.
For example, an untrustworthy joint owner may withdraw all the money in a bank account
and leave you with nothing. It is possible to challenge a co-owner’s improper use of your
money, but it may be difficult. In some states, creditors of a co-owner may be able to
reach your account, even though that person is only listed on your account to help you
manage your money. In addition, being listed as a co-owner of a bank account could affect
the co-owner’s eligibility for public benefit programs such as Medicaid. Finally, transfers
of a home, a car, or securities, normally requires the signature of all owners. The loss of
capacity of one owner may prevent a needed sale or transfer of the property. See
the chapter on estate planning for more information on joint ownership.
Q. I’m concerned about the disadvantages of joint bank accounts. Is there
another way that I can give someone access to my bank account without giving that
person ownership of my money?
A. Some states have laws allowing persons to create what is referred to as an
“agency bank account” or “convenience account.” This works very much like a durable
power of attorney. You name an agent on your bank account who then has the authority to
make deposits or withdrawals and manage your account. The authority remains effective if
you become incapacitated or disabled, unless you indicate otherwise. The agent has no
right of ownership in the money in the account before or after your death, unless you
indicate that the agent is to receive the money when you die. This may be a useful tool for
you if you do not want to give someone authority over other aspects of your financial
affairs through a durable power of attorney. It also may be useful as a supplement to your
durable power of attorney, because some banks are reluctant to accept a durable power of
attorney and prefer their own forms and procedures. Your banker or lawyer should be able
to tell you whether your state’s law allows agency bank accounts and how one might
Q. I have no income other than my social security check. Would a living trust
or power of attorney help me manage my money?
A. A living trust is far too costly and complicated for this kind of situation. A
durable power of attorney definitely would be helpful. However, if the primary need is to
take care of the social security check, a “representative payee” may be the simplest way to
help you take care of your daily expenses and manage your small income.
Q. What is a representative payee?
A. A representative payee is a person or organization appointed by a government
agency, such as the Social Security Administration (SSA) or the Veterans Administration
(VA), to receive and manage public benefits on behalf of someone who is incapable of
doing so. The payee actually receives your government benefits on your behalf and is
responsible for managing those benefits and making sure that they are spent for your
Q. What types of income may a representative payee manage?
A. He or she may only manage the income paid by government programs (usually
federal programs such as social security, veterans benefits, black-lung benefits, and
supplemental security income programs). The representative payee has no authority over
any other income or property that you might receive. If you have additional income from
other sources, you may need other assistance (such as help from an agent under your
durable power of attorney or from a money management program, discussed below) in
addition to the help of a representative payee.
Q. How is a representative payee set up?
A. You, or someone on your behalf, must ask the Social Security Administration
(or other program) to appoint a representative payee. Generally, you must have some sort
of disability that prevents you from managing your own financial affairs, and you
probably will need medical records of your disability. The government agency that
provides the benefits must decide that you need help managing them. Your disability may
be physical or mental. Although the decision is made by the agency and not by a court of
law, you have the right to contest the appointment of a representative payee if you
disagree, including the right to a hearing and all the appeals rights that apply to any claim
before the agency.
Q. How can I be sure a representative will manage my money properly?
A. Supervising representative payees can be a problem. In principle, the payee
must provide a detailed accounting to the agency paying the benefits. However, many
exceptions exist. For example, spouses and institutions (such as nursing homes) that are
acting as payees do not have to make such reports. Under some benefits programs, such as
the VA, reporting requirements vary with the size of the benefit. There is not much you
may do to protect yourself ahead of time in such circumstances, except to plan for
incapacity through other methods that allow someone else of your choice to manage your
income for you.
Q. If I regain my ability to control my own finances, may I dismiss a
A. Yes. First you need a doctor’s certification that you are now able to manage
your own financial affairs. You must then notify the government agency of your wish to
dismiss the representative payee, and the agency must determine that you have regained
the capacity to manage your own benefits.
Money Management Services
Q. I do not have a durable power of attorney or other legal tool for managing
my property, but I have heard of some organizations offering “money management”
services. What are these?
A. Money management programs, also known as “daily money management” or
“voluntary money management,” represent a broad group of services designed to help
older persons or persons with disabilities who need assistance managing their financial
affairs. These services might include check depositing, check writing, checkbook
balancing, bill paying, insurance claim preparation and filing, tax preparation and
counseling, investment counseling, and public benefit applications and counseling.
Q. Who provides money management services?
A. This assistance may be provided by an individual or an organization. An
organization may provide services on a for- profit or not-for-profit basis. Services may be
provided for free, on a sliding fee scale basis (where you pay according to our income), or
for a flat rate.
If you receive or are considering money management services, you should make
sure that your service provider has a system of cash controls to prevent or at least lessen
the risk of embezzlement of client funds. The service provider should also be bonded and
insured to protect clients from theft or loss of funds.
Q. How do money management programs help me keep control of my life?
A. A money management program may be able to help by providing the financial
management assistance you need in the way you want it. It may also help avoid the need
for a guardianship. Money management services work on a voluntary basis, so you must
be able to ask for help or accept an offer of help. Money management services may be
particularly useful if you have no family or friends who are able or whom you trust to act
as your agent or trustee.
Q. What exactly is a guardian?
A. A guardian is someone who is appointed by a court to make personal and/or
financial decisions on behalf of another person. “Guardian” is a general term for a courtappointed
surrogate (substitute) decision maker. Your state may use other terms, such as
“conservator,” “committee,” or “curator.” Some terms may only apply if the decision
maker has authority over financial and property matters; other terms may apply if the
decision maker has authority over personal decisions such as living arrangements and
health care. A person who has a guardian may be called a “ward,” an “incapacitated
person,” or some other term.
Q. When is the appointment of a guardian appropriate?
A. People need a guardian when:
(1) they can no longer manage their affairs because of serious incapacity:
(2) no other voluntary arrangements for decision making and management have
been set up ahead of time, (or if they have been set up, they are not working
(3) serious harm will come to the individual if no legally authorized decision
maker is appointed.
A guardianship is a serious step and should relate to a serious inability to make or
understand the consequences of decisions. It should not depend on stereotypical notions of
old age, mental illness, or handicaps. A person has a right to make foolish or risky
decisions. These decisions by themselves do not mean that the person has a decision
Q. Are there any disadvantages to the appointment of a guardian?
A. Yes. Although a guardianship may be necessary to protect the welfare of an
incapacitated person, it also results in the loss of individual rights. The person under a
guardianship may lose several civil rights: the right to marry, the right to vote, the right to
hold a driver’s license, the right to make a will, the right to enter into a contract, and other
rights. Because of its serious consequences, guardianship should be considered the last
resort for helping someone who is experiencing incapacity.
In addition, the court proceedings themselves can be costly, time-consuming, and
emotionally trying for a family. Once in place, a guardian’s ability to manage the estate is
far less flexible than would be under advance planning legal tools such as durable powers
of attorney or living trusts. Guardians must operate within strict fiduciary limitations and
normally must file annual accountings with the court. On the positive side, the fiduciary
rules and court accountings ensure at least some oversight and accountability of the
Q. Who appoints a guardian?
A. Procedures vary among the states, but generally a court of law appoints a
guardian after hearing evidence that a person is incapable of making decisions and
deciding that the person needs a surrogate decision maker.
In most states, the law requires some form of due-process rights. These rights are
intended to protect a person from being inappropriately declared incapacitated. The rights
include the right to be notified of the date and place of the hearing, the right to be present
at the hearing, and the right to be represented by a lawyer.
Q. My elderly mother is often confused. I think she ought to have a guardian
to look after her interests. What do I do?
A. First, you may want to contact your local area agency on aging to see if there
are any programs or services that might help your mother manage and make it
unnecessary to obtain a guardian for her. It will also help to have her examined by a
doctor or psychologist experienced in geriatric evaluation. A geriatric evaluation will
typically involve evaluation by more than one specialist from different disciplines, such as
medicine, nursing, and social work. Often, a person’s decision making may be impaired
because of physical or other causes that can be corrected.
If the evaluation supports the need for a guardianship, check with a lawyer to learn
the specifics of your state’s guardianship law and procedures, as they vary substantially
from state to state. The appointment of a guardian normally requires the filing of a petition
with the court, notice to your mother and other interested parties, and a court hearing. You
will probably need a lawyer to help you through it.
The court may also appoint an investigator or “visitor” to interview your mother
and make a report to the court or an attorney to represent your mother. At the hearing, a
judge will review the petition, the investigator’s or attorney’s report, and medical reports.
The judge may ask the person filing the petition why the other person needs a
guardian. The judge may also ask the allegedly incapacitated person some questions. The
hearings are usually fairly informal. If there is disagreement, the judge may set the case
for a formal hearing with witness testimony, cross examination, and argument by counsel.
Q. What if someone thinks I need a guardian, and I do not want one?
A. Every state gives the allegedly incapacitated person a chance to fight the
petition for guardianship. If you do not think you need a guardian, you must let the court
know that. Usually you do this by appearing in court on the day of the hearing or asking
someone to represent you at the hearing.
It is best to get your own lawyer to represent you at the hearing. If you cannot
afford one, many states require that the court appoint one at the state’s expense. Some free
legal services programs for older persons will help you fight a guardianship. If you cannot
get to court or hire a lawyer, you may write the court about your objection to the
Who May Be a Guardian?
Laws vary from one state to another. In most states, the courts may appoint almost
anyone as your guardian if the person meets legal requirements. Often the court appoints
the person filing the petition. Most courts like to appoint a relative who knows the person
and is most likely to act in his or her best interests. However, the courts may appoint a
friend or attorney, especially if no family members are available. The courts also may
appoint multiple guardians, either with shared responsibilities or with responsibilities split
between them. If there are no friends or family willing or able to serve as guardian, many
states permit public or private agencies to act as the guardian and to charge fees for that
Q. This sounds very expensive. Who pays for a guardianship?
A. It can be expensive. There are court charges and attorney fees and fees for the
doctor or other persons who examine the alleged incapacitated person to assess his or her
capacity. If the court appoints a guardian, the estate usually pays the guardian’s fees. Older
persons who are either seeking guardianship over a family member or who are challenging
a guardianship may be able to get free legal help through legal services programs or
through lawyers who volunteer their services pro bono (free of charge). Contact your local
area agency on aging or local bar association to find these resources in your community.
Q. If I need a guardian, may I specify whom I want and do not want to play
A. Yes, the court will give due weight to your preference, and in some states must
follow your preference unless there is good cause no to do so. You should nominate a
guardian, this as part of your general planning for incapacity. Sometimes even the best
plans for incapacity fail (for example, if your agent under your durable power of attorney
passes away after you become incapacitated), so it is a good idea to name in your planning
documents one or two people whom you want as your guardian if that becomes necessary.
Q. May the court remove a guardian?
A. Yes, a guardian may be removed if the incapacitated person can prove that he or
she has regained the capacity to make decisions. It can be hard to have a guardian
removed. Therefore, if someone’s incapacity may be temporary, consider whether some
other legal tool (such as money management or a representative payee) will meet the
person’s need for help and make it unnecessary to get a guardianship.
A court also may remove a guardian who is not properly carrying out his or her
responsibilities. Usually a new guardian will replace the person who is removed.
Q. My elderly aunt needs some help with her affairs, but she is not totally
incapable. May a guardianship meet her needs?
A. In most states, if a person has partial capacity his or her guardian may be given
only partial power over his or her affairs. This is generally called a “limited guardianship.”
In your aunt’s case, the court’s guardianship order would identify the specific matters over
which the guardian has authority. Your aunt would retain legal authority over all other
areas of her life.
In all states, the courts try to ensure that a guardianship is the “least restrictive”
alternative. This means that a guardianship restricts the ward as little as possible, letting
the ward do whatever the disability allows.
Suppose your aunt can no longer manage her large estate, but she can handle her
daily finances. A guardianship should let her keep control over everyday expenses. Or, let
us say your aunt needs placement in a nursing home by the guardian. If she can say what
type of nursing home she wants to live in, the guardian should honor those wishes.
Even when a limited guardianship is not feasible, the guardian should try to
involve the ward in making decisions whenever possible.
Health Care Decision Making Issues
Q. What is my right to control decisions about my health care?
A. With few exceptions, our system of law recognizes the right of capable
individuals to control decisions about what happens to their bodies. This includes the right
to refuse any suggested medical treatment. We normally exercise this right by talking to
our doctor and other health care providers. You have a right to:
· know all the relevant facts about your medical condition;
· know the pros and cons of different treatment options;
· talk to other doctors and get their opinions, too;
· say “yes” to treatment or care that you want, and “no” to treatment or care that you do
Your doctor is the expert in medicine, but you are the expert in defining and applying
your personal values and preferences.
Q. What happens to my right to make medical decisions if I am too sick to
A. In an emergency, the law presumes consent. In all other instances, someone else
must make decisions for you. The best way to ensure that decisions are made the way you
would want and by the person you want, is to do an advance directive for health care
before you become incapacitated.
Q. What is an advance directive for health care?
A. An advance directive is generally a written statement, which you complete in
advance of serious illness, about how you want medical decisions made. The two most
common forms of advance directive are a “living will” and a “durable power of attorney
for health care,” although in many states you may combine these into a single advance
An advance directive allows you to state your choices for health care or to name
someone to make those choices for you, if you become unable to make decisions about
your medical treatment. In short, an advance directive enables you to have some control
over your future medical care. You can say “yes” to treatment you want, or say “no” to
treatment you don’t want.
Q. What is a living will?
A. A living will is simply a written instruction spelling out any treatments you
want or don’t want in the event you are unable to speak for yourself and you are terminally
ill or permanently unconscious. A living will simply says, “Whoever is deciding, please
follow these instructions.” It is called a “living will” because it takes effect while you are
still alive. It is also called a “medical directive” or “declaration.”
Q. What is a durable power of attorney for health care?
A. A durable power of attorney for health care (sometimes called “health care
proxy”) is a document that appoints someone of your choice to be your authorized agent
(or “attorney-in-fact” or “proxy”) for purposes of health care decisions. You can give your
agent as much or as little authority as you wish to make some or all health care decisions
for you. And in most states, you can include the same kind of instructions that you would
put in a living will.
Q. Which is better: a living will or a durable power of attorney for health
A. The most efficient approach is to combine the living will and durable power of
attorney for health care in one document. In most states you can do this. However, some
states have less flexible rules for these advance directives. In these states, having both may
be the preferred approach.
On its own, a living will is a very limited document because, under most state
statutes, living wills apply only to terminal illness or permanent unconsciousness. They
address only life-sustaining medical treatments and not other treatment decisions, and they
provide fairly general instructions that may be difficult to interpret in complicated medical
The durable power of attorney for health care is a more comprehensive and
flexible document. It may cover any health care decision and is not limited to terminal
illness or permanent coma. More importantly, it authorizes someone of your choice to
weigh all the facts at the time a decision needs to be made and to legally speak for you
according to any guidelines you provide.
Q. Why can’t I just tell my doctor what I want?
A. Telling your doctor and others what you want does provide important evidence
of your wishes if you later become incapacitated, especially if your doctor writes your
wishes down in your medical record. However, written advance directives are likely to
carry more weight and to be followed.
Q. What happens if I do not have an advance directive?
A. If you have not planned ahead by executing an advance directive, many states
have family consent (or health surrogate) statutes that authorize someone else, typically
family members in the order of kinship, to make some or all health care decisions. Even in
the absence of such statutes, most doctors and health facilities routinely rely on family
consent, as long as they are close family members and no controversial decisions need to
However, without an advance directive, decisions may not be made the way you
would want them, or by the person you would want to make them. Making an advance
directive also benefits your family members, because it spares them the agony of having to
guess what you would really want.
If no close family or other surrogate is available to make decisions for you, a
court-appointed guardian may be necessary. This is an option of last resort.
Q. How do I make an advance directive?
A. Requirements differ from state to state. Many states provide suggested forms,
and in some cases, required language for advance directives. Most states have specific
witnessing or notary requirements. Follow these requirements closely. Commonly, two
witnesses are required; and often, several categories of persons are disqualified from
serving as a witness, such as relatives, heirs, or health care providers.
In addition to the forms included in state law, a variety of other advance directive
forms are available–some prepared by state bars or medical associations, some published
by national organizations, others published in journals or local publications or do-ityourself
The most important point to remember about forms is that they are supposed to
aid, and not take the place of discussion and dialog. Therefore, a form ought to be a
starting point, not an end point, for making your wishes known. There is no ideal form.
Any form you use should be personalized to reflect your values and preferences. Before
doing an advance directive, talk with your doctor, family members, and advisors. This will
help you to understand the medical possibilities you may face and clarify your values and
Q. What should my advance directive say?
A. No one can tell you exactly what to say in your advance directive. However, the
most important task to accomplish is to name someone you trust to act as your agent for
health care decisions. If there is no one whom you fully trust to act as your agent, then it is
best not to name an agent, and instead, only include instructions about the kinds of
treatment you would want or not want if you became seriously ill.
Also consider addressing:
(1) Alternate proxies. Whenever possible, name one or more alternate or successor
agents in case your primary agent is unavailable.
(2) Life-sustaining treatments. Are there any specific types of treatment you want
or don’t want in any circumstances? Your personal or family medical history
may make certain conditions or treatments more likely.
(3) Artificial Nutrition & Hydration. Some states will presume that you want
nutrition and hydration in all circumstances unless you instruct otherwise.
(4) Organ donation. In many states, you can include instructions about donating
organs in your advance directive.
Q. Can I change or terminate my advance directive?
A. Yes, you always have the right to change or revoke your advance directive
while you have the mental capacity to do so. Normally, you can revoke it orally or in
writing in any way that indicates your intent to revoke. Your intent should be
communicated to your agent, your family, and doctor.
If you want to change the document, it is best to execute a new document. The
same formalities of signing and witnessing are required for changes.
Q. Whom should I select as my agent or proxy for health decisions?
A. The choice of agent is the most important decision you may make in doing an
advance directive. Your agent will have great power over your health and personal care if
you become incapacitated. Name a person whom you trust fully. If no such person is
available, it may be best not to name a health care agent.
Find out who can and cannot be your agent under state law. Some states prohibit
health care providers or health care facility employees from acting as your agent. Speak to
the person you wish to appoint beforehand to explain your intentions and to obtain his or
her agreement. Preferably, do not name co-agents, because it opens up the possibility of
disagreement among agents. Instead, name alternate or successor agents, in case the
primary agent is unavailable. If there is anyone whom you absolutely want to keep out of
playing any role in your health care decisions, you may be able to expressly disqualify that
person in your advance directive.
Q. What do I do with my advance directive after completing one?
A. Make sure someone close to you knows where it is located. If you have named
an agent, give your agent a copy or the original. Also give your physician a copy and ask
that it be made part of your permanent medical record. You may also want to make a
small card for your purse or wallet that states that you have an advance directive and
provides the name, phone number, and address of your agent or person who can provide a
copy of it.
Q. What if my doctor or hospital refuses to follow my advance directive?
A. First, find out ahead of time your doctor’s views about advance directives and
your specific wishes. If you disagree, you may wish to find a new doctor ahead of time.
Under federal law, most hospitals, nursing homes, and home health agencies must
inform you of their policies about advance directives at the time of admission. Most will
respect advance directives, but some may have restrictive policies. However, no facility
can require you to have, or not have, an advance directive as a requirement of admission. I
If you are in a condition to which your advance directive applies and your
providers will not honor your directive, state law spells out their obligations. Usually, the
provider must make a reasonable effort to transfer the patient to another provider who will
respect the advance directive.
Q. If I make an advance directive in one state, will it be recognized in others?
A. In many states, the law expressly honors out-of-state directives. But, in some
states, the law is unclear. Realistically, providers will normally try to follow your stated
wishes, regardless of the form you use or where you executed it. However, if you spend a
great deal of time in more than one state (for example, summers in Wisconsin, winters in
Arizona), you may want to consider executing an advance directive for each state. Or, find
out whether one document meets the formal requirements of both states. As a practical
matter, you may want different health care agents if the same agent is not easily available
in both locations.
Most state or area agencies on aging have information on advance directives, as do
many state bar associations and medical societies. State-specific information and forms
are also available from:
Choice in Dying, 1-800-989-WILL (9455), website www.choices.org. (The
organization is evolving into a new organization concerned more broadly with excellent
end-of-life care. You can learn about Partnership for Caring by accessing
www.partnershipforcaring.org.) If your state doesn’t specify a particular form
for a living will, Choice in Dying can send you a living will declaration that will keep you
from being hooked up to resuscitation machine. It must be signed by two witnesses, who
cannot be your relatives, heirs, or doctor
Q. Is a lawyer needed to do an advance directive?
A. No, a lawyer is not necessary, but a lawyer experienced in doing advance
directives is very helpful. A lawyer can draft a personalized document that reflects your
particular wishes and ensure that all legal formalities are followed. A lawyer is especially
helpful if potential family conflicts or special legal or medical concerns are present.
Abuse and Exploitation
Q. What is elder abuse?
A. Elder abuse occurs when anybody neglects or abuses an older person. The abuse can be physical or mental. Definitions of elder abuse vary from state to state, but
· physical abuse, such as hitting or shoving; sexual abuse, including fondling, sexual
intercourse, and forced intimate contact of almost any sort;
· verbal and psychological abuse, such as screaming at the older person, name calling,
and threatening the person;
· neglect, such as withholding food, shelter, medical care, medication, and other
necessities from the older person; and
· restraint, such as keeping the person locked up.
Also included in most states is financial exploitation. This can range from outright
theft to misuse of the older person’s money. Cashing an older person’s social security
check and not using the money for the person’s care is one example. Many states also
would consider misusing credit cards or funds held in joint bank accounts as financial
Every state has specific elder abuse laws. You can get details on laws and
programs from your area or state agency on aging or contact the National Center on Elder
Abuse at 1225 I Street, N.W., Suite 725, Washington, DC 20005 or on their website at
Q. Is elder abuse just a problem for very frail old people who live in nursing
A. Elder abuse is a real problem for many older people. Some victims are very frail
and are unable to seek help on their own. However, many elder abuse victims are active
older adults who feel cornered in an emotionally difficult situation.
Elder abuse can be a problem for both the rich and the poor. It does not strike only
one race, social class, or economic level.
Q. My son shares my apartment with me. Sometimes, when I forget things or
get confused, he loses his temper, pushes me, and threatens to put me in a nursing
home. Is this abuse?
A. Yes. Many types of elder abuse occur within the home. Even if it only happens
from time to time, it is still abuse. Seek help from your local social service agency on
Q. My neighbor is very old and sick. She depends on her daughter for
shopping, cooking, and cleaning. However, her daughter often leaves the older
woman without food and clean clothes. Is there anything I can do to help?
A. Yes, you may report this neglect to your local elder abuse reporting agency.
This may be your state or local agency on aging or human services department. You may
even report abuse and neglect to the police.
You should not worry about being sued for making the report. Almost all states
protect people who make such reports acting in good faith. You may even make an
Q. My son is using all my money to buy illegal drugs. He is also running up
large charges on my credit cards. (His name is on my credit-card accounts and my
bank accounts.) Since he is a co-owner of my home, I am afraid he will mortgage it or
possibly even sell it to get more money. What can I do?
A. Even if he has the legal right to reach your funds, you may protect yourself
from this type of financial exploitation. Ask your bank to help you transfer funds to new
accounts that your son may not access. Write all your credit card companies and ask them
to remove your son’s name from your accounts. Have them issue new credit cards to you.
Contact a lawyer to see what you must do to protect your home. A free legal
services program for older or poor persons may be able to help you. Your local area
agency on aging can help you find those resources.
Finally, seek help for yourself and for your son from a local social service agency.
Many of them have experience in dealing with family difficulties of this sort. You do not
have to allow your son’s problems to overtake your own well-being and financial security.
Q. My son and daughter-in-law live with me in my home. They are living
rent-free and give me no money for household bills or food. I feel like they are taking
advantage of me. Can someone help me?
A. Yes. The situation you describe is surprisingly common. If the help you provide them is not what you wish, you are being exploited. Over 75 percent of all abusers are
family members. You can seek help from an elder abuse program operating in your area. It
can provide counseling and other assistance.
Most of the time people prefer to resolve disputes and manage affairs on their own.
Sometimes, however, they will need expert help to protect their interests. Many older
people already have lawyers who have helped them with legal issues in the past. Others
will need to work with a lawyer for the first time. Help from a lawyer who is an expert
about social security or estate planning may be necessary.
Q. My 45-year-old son and I are co-owners of a condominium. We have had a
falling-out over some lifestyle issues. Do I need a lawyer to get me out of the joint
ownership? How can my son and I resolve our differences?
A. You could hire a lawyer and go to court, but some other solutions may be faster,
less expensive, and produce better and more lasting solutions.
Sometimes, problems that seem to be “legal” may be solved through other means.
A social worker or psychotherapist can help with family problems. Some specialize in
counseling for the elderly. You also can request help from a social service agency. Your
local agency on aging can provide information dispute. It may be available through your
local court or through a private mediator. Your local bar association also may be able to
make a referral. Another option is small claims court. Small claims court gives you the
opportunity to get a legal judgment without hiring a lawyer and putting up with delays, if
the dollar amount is under a certain amount, for example, $2,000. There is more
information about small claims court in the chapter, “How the Legal System
Suppose your spouse sometimes hits you or pushes you around. You are both over
sixty-five, and it is harder for you to run away from him or her. Is there anything you can
do after all these years?
You do not have to live with abuse, no matter what your age. Physical abuse is
against the law. It is no more legal for your spouse to hit you than for a stranger to hit you.
Fortunately, more and more police departments and courts are sensitive to
domestic violence and are willing to help victims. If your spouse strikes you, call the
police and file a complaint. You also may ask the police to help you find a domestic
violence shelter. You may stay there if you wish to leave your abusive home.
If you do not want to leave your home, you may seek an order of protection
through the courts. With such an order, you can have your spouse removed from the
home, even though he or she may be the owner. Call the National Domestic Violence
Hotline for assistance and information at 1-800-787-3224. See the chapter “Family Law”
for more helpful information.
Your Area Agency on Aging (AAA)
One important product of the Older Americans Act is the nationwide network of
area agencies on aging (AAA). Today, every area of the country is served by either an
AAA or a state unit on aging. These agencies help local communities develop services
specifically for older residents. The AAAs channel funds from the Older Americans Act to
Each AAA operates autonomously. All of them offer information and
referral services to older adults. A few provide services directly, but most only coordinate
services and provide assistance to designated service agencies in the local communities.
AAAs provide funding and programming for local senior citizen centers,
too. Programs include recreation, socialization, meals, and educational programs. Many
service organizations offer programs at the senior centers as well as at other sites in the
community. Additional funds are generally provided by local and state governments, as
well as by such organizations as the United Way, private foundations, corporations, and
You can feel confident in calling your AAA with almost any question about
services in your neighborhood for older people. You can also go directly to a senior
citizen center near you and ask for help. If staff there cannot provide it, ask them to put
you in touch with someone in the AAA who can help.
Q. My Aunt Minnie is in a nursing home. I fear they do not treat her well.
They may even tie her in a chair part of the day. Her husband is in a board care
home, and they won’t let him visit Aunt Minnie. Her younger sister lives in her own
home. She had an aide and nurse to help her when she left the hospital, but they just
stopped visiting her. How can I be certain that all three receive quality care?
A. You should call the local long-term care ombudsman, an advocate who works
to ensure that older Americans receive appropriate quality care.
Q. A. I have an elderly neighbor who is finding it hard to manage on her own,
especially with shopping and preparing meals. Are there services that could help
A. Yes. Under the Older Americans Act, several types of nutrition programs and
chore services are available to aid older adults. These include home-delivered hot meals,
as well as meals served at a “congregate” dining site. There may be limitations placed on
home-delivered services because of the great need and the limited amount of funding. The
AAA or someone designated will do an assessment of need. The result of such an
assessment may lead to the identification of more services that may be arranged for your
Q. I would like to use some of the services described here, but I really can’t
afford to pay for helpers or home-delivered meals. How can I use these programs?
A. The Older Americans Act targets services to low-income and minority elderly,
as well as to those who are frail or disabled. Many of the programs funded by the Act are
provided without charge, although donations may be requested. Other programs offered
by, arranged for, or provided through area agencies on aging may have a small fee or use a
“sliding scale,” where the fee is assessed on the basis of your ability to pay. Some
programs are reimbursed by other governmental programs such as Medicaid. Do not let
financial concerns keep you from benefiting from the variety of programs available.
Q. My elderly mother has been diagnosed as having Alzheimer’s disease. I
would like to have her live with me. Are there services available to help me provide
for her needs in my own home?
A. Maybe. Although the Older Americans Act authorizes grants to be made to
provide such services, they may or may not be available in your community. These may
include in-home supportive services for victims of Alzheimer’s disease or related
condition, and for the families of these victims.
The services and the extent of services vary from place to place. They might
include counseling and training for family care-givers, a needs assessment and assistance
in locating and securing services, and case management. A case manager acts as an
advisor, broker, and services might also include homemaker and home health aides, inhome
respite service so family care-givers can get away for short periods, assistance in
adapting a home to meet the needs of an impaired older person, and chore maintenance.
A second very important resource is the state or local Alzheimer’s Association.
Local chapters can be found through the Alzheimer’s Disease Education and Referral
Center, P.O. Box 8250, Silver Spring , MD 20907, telephone: 1-800-438-4380, website
www.alzheimers.org. The Alzheimer’s Association’s local chapters provide extensive
knowledge of resources for families of Alzheimer’s victims in your specific community.
Chapters also offer support from others whose loved ones are victims.
Q.I would like help in getting a job, since I feel able to continue working even
though I have retired. Can I get help under the Older Americans Act?
A. Yes. Through the Community Service Employment for Older Americans
program you may be able to get help in finding a job or training opportunity. These may
be part-time positions, at minimum wage. In general, this program is designed for lowerincome
seniors, so income and resource eligibility requirements may apply.
Q. I’m retired and I’m looking for new experiences, but I don’t really want to
enroll in a school. Is there anything for me?
A. Many universities, local junior colleges, and museum education programs
provide special programs, reduced fees, and auditing of classes. A call to the one closest to
you can provide information about such programs. The Elderhostel program meets the
needs of people like you. Elderhostel is a not-for-profit agency offering educational
programs for adults aged sixty years and older. Through an international network of
colleges and universities, Elderhostel is able to offer low-cost residential academic
programs both in America and abroad. Courses offered have included “The Literary
Heritage of Oxford,” offered in Oxford, England; “Political Controversies, Judicial
Politics and You”; and lectures on Greek Island society, in conjunction with a cruise of the
Greek Isles. The courses are usually taught by university faculty, and run from one to
three weeks. Most of the time, participants are housed in dormitories. On special trips,
other arrangements may be made. Students may expect to spend approximately three
hours a day in class, with many field trips and opportunities for sightseeing.
For more information, contact your local agency on aging or write to Elderhostel at
75 Federal St., Boston, MA 02110-1941, or call 617-426-8056. web: www.elderhostel.org