#Legal – take 2

It wasn’t so long ago that my daughter Meghan was turning 18 and I wrote the blog post “#Legal”.  Fast forward 21 months and here I am again with a child, this time my son, turning 18.   In a less than 3 month time span, Carter will: graduate from high school, turn 18 and start college in a different state.  (Yes, I’m emotional and tearing up when I think about all of this and when I’m writing this).

When Carter turns 18 he is a legal adult in Minnesota.  This means he can make his own health care decisions. He can vote. He can enter into contracts. He can get married. He can enter the military. The mom in me is proud (even if a bit weepy), that my son has grown into a young man who is headed in a good direction.

But the mom in me is also sad and scared that my parenting role is done (though I know it will never be over) and that my son won’t necessarily be able to handle all of these adult things yet, on his own. (He DID just call me from school today to tell me his tooth hurts and see if I can schedule a dentist appointment.  Would he know how to do this on his own? Would he even do this on his own? It’s so hard for moms to let go of taking care of their babies – even if they are 18).

The lawyer in me knows what I need to do in order to make sure that I still have a role in his life, in terms of medical decision making and financial/transacational things. I want to able to help him with medical decision making and appointments, if he needs/wants me to.  I want to be able to help out with his accounts and financial transactions, if he needs me to (which is NOT the same as him needing me to send him pizza money on a Friday night at college!). So how do I ensure that I can do this?  Have him sign a Health Care Directive and Power of Attorney.  These are two documents in Minnesota that an adult signs that names someone else to make medical decisions/access medical information (for the Health Care Directive) and make financial decisions/access financial records – among other things – (for the Power of Attorney). Every adult should have these two documents in place – not just “kids” turning 18.

So, just as I did for Meghan when she turned 18, wrapped up with Carter’s birthday presents next month will be a Power of Attorney and a Health Care Directive from me.  I hope he will fill them out and give me the legal authority to help him, if he needs it.  If he chooses to fill it out, it’s really him who will be giving me a gift on his 18th birthday – the gift of peace of mind, knowing that I’ll be able to legally help him if he needs it.

 

What to do if your elderly parent needs help making decisions

What do you do if your elderly parent needs help making decisions?

  1. Determine what level of help that they need.  This is often easier said than done. You should look at their physical, mental and emotional health and try to determine whether they are still in a position to make their own decisions.  Sometimes the elderly can still come to their own decision about their medical care, where they live, etc., but they simply need help implementing their decisions.  Sometimes the elderly have become so cognitively impaired, or are so vulnerable, that they can no longer even make their own decision, let alone implement it. Most times, the elderly lie somewhere in between these two extremes. Figuring out what level of help they need often requires the input of the elderly person’s physician. Sometimes you can tell what level of assistance is needed just based upon your own interactions with mom or dad.
  2. If mom or dad can still make their own decisions, but just need help implementing their decisions, you should take them to an estate planning attorney who can meet with them and get legal documents or other things in place that will allow someone else to help them implement their decisions.  These things range from joint accounts to a health care directive to a power of attorney. The estate planning attorney could even put them in touch with resources to help them develop a care plan for if their health takes a turn for the worse.
  3. If mom or dad can no longer make their own decisions to keep themselves safe, then you should determine whether they have in place legal documents that allow someone else to make decisions for them.  These documents are a health care directive (for medical decisions) and a power of attorney (for financial decisions). Depending on the details of the documents and the particular circumstances that mom or dad face, these might be sufficient to allow someone else to act on mom or dad’s behalf.
  4. If mom or dad can no longer make their own decisions to keep themselves safe and they do not have any legal documents or other measures in place, then you likely need to pursue the appointment of a guardian and/or conservator for mom or dad.  Most people find that they need the assistance of an attorney to do this.

If you have questions about how you can help your elderly parents with decision-making, please contact Cindi Spence of Spence Legal Services at (763) 682-2247.

#Legal

meg 18 2

“Parents can only give good advice or put them on the right paths, but the final forming of a person’s character lies in their own hands.”  — Anne Frank

My daughter turns 18 tomorrow.  On the first day of her senior year in high school. As her friends have turned 18 over the past months, they talk excitedly about being able to go to the casino, buy lottery tickets, get piercings and tattoos. They post photos on instragram with the hashtag #legal.  What does it mean to turn 18 and be “legal”?

The Mom in me is experiencing a diverse range of emotions about this milestone.  Awe when I look at the beautiful, talented, intelligent, funny and genuinely good young woman that my daughter has become.  Amazement that she has become all of this, despite my shortcomings as a parent throughout her 18 years. Truthfully, a bit melancholy that she is one step closer to leaving home.  Excitement when I think of the possibilities and adventures that she has before her. Mostly, though, I am filled with such a deep sense of love and gratitude, for the privilege of being my daughter’s Mom.

The Lawyer in me is looking at the milestone of my daughter’s 18th birthday in a different light.  In the eyes of the law, my daughter becomes a legal adult tomorrow, with all the privileges and responsibilities that ensue. She can vote. She would be charged as an adult in criminal matters. She could enlist in the military. She can be summoned for jury duty. She can make her own health care decisions. She can enter into contracts.

Combining my Mom hat and Lawyer hat, I look at my daughter turning 18 in terms of what I am no longer able to do for her (without her permission/consent or without her signing legal documents that give me the power and ability to act on her behalf).  I am no longer able to make health care decisions for her.  I am no longer able to access or look at her medical records.  I am no longer able to do her banking for her, or apply for accounts/benefits for her.  I am no longer able to access her school records.

I am not ready to give up all these things.

Can a parent really have no legal rights, no ability to direct their child’s future when she is still living at home, a senior in high school and when the parent is paying for the basics of life and even for college?  It’s true.  I recall a heartbroken mother calling me a few years ago about her 19 year old “baby” being in the psych ward of a local hospital, having just tried to commit suicide, and not allowing mom to visit her or learn anything about her medical condition.  There wasn’t anything that I could do for the caller.  Her “baby” was an adult – free to make her own choices under the eyes of the law.

So what then can a parent do when their child turns 18, if the parent still wants the legal right to direct medical care, access medical records, assist with financial transactions, access school records?  There are two documents in Minnesota that an adult can (and should) sign to give someone (a parent, a friend, another trusted individual) authority for these sorts of transactions.  Those documents are a Health Care Directive and a Power of Attorney.  Every adult should have them in place.  Having them in place can avoid a court imposed Guardianship or Conservatorship (if a person becomes incapacitated and is unable to make their own good personal and financial decisions, the court appoints a substitute decision maker).

So on my daughter’s 18th birthday tomorrow, mixed in with her other gifts from me will be a Health Care Directive form and a Power of Attorney form, for her to consider.  Can I make her sign them?  No.  She’s an adult and with that comes the right to make her own choices.

I’m hoping that I’ve given my daughter good advice and put her on the right path so that the choices that she does make are good ones.

Managing Someone Else’s Money Under a POA

POAOne of the ways to avoid having a guardianship imposed is to have an effectively working “lesser restrictive alternative” in place.   A power of attorney is an example of a lesser restrictive alternative.  Although, it is important to note, that the power of attorney does NOT automatically mean that a guardianship will be avoided.  It can be misused or not used at all.  It can be revoked.

If there is a power of attorney in place, it is important that the person acting under the authority given by it, follow some basic rules/guidelines.  The  Consumer Financial Protection Bureau has released a guide called “Managing Someone Else’s Money: Help For Agents Under a Power of Attorney”.  It is a great resource.  It sets forth, in very basic, understandable language, what a power of attorney is, what a person’s duties are under the power of attorney, how to recognize financial exploitation, and contact information for varioius agencies that deal with exploitation.

The 4 basic duties of an agent acting under a power of attorney for a principal (the person granting the power):

  1. Act only in the Principal’s best interest.
  2. Manage the Principal’s money carefully
  3. Keep the Principal’s money and property separate from your own
  4. Keep good records

Check out this great resource for more details!

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