Elder Law Legal Documents

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Most people prefer to make their own decisions. But what happens if, due to illness or injury, you are temporarily or permanently unable to make decisions for yourself? Empower yourself and take charge by having the appropriate legal documents drafted that dictate what instructions you want followed and who will be authorized to make medical, legal, and financial decisions on your behalf. At Kelli Y Allen Elder Law, our Charlotte elder law lawyer can assist you with the creation and execution of:

Trusts

A trust is a written document that prescribes how assets contained within the trust are to be managed and distributed. They are often used as an estate planning tool to avoid probate, or as a means of Medicaid asset protection.

Revocable Trusts

A revocable trust is one that the grantor (person who starts the trust) can discontinue during his or her lifetime. The grantor can freely add or remove assets, take distributions, or make changes. In North Carolina, property that is held in a revocable trust is not required to go through probate. Rather, the property passes as dictated in the trust document.

Irrevocable Trusts

An irrevocable trust is one in which the grantor (person who starts the trust) cannot access the assets once they are placed into the trust. The grantor can determine who will manage the trust and who will have access to trust assets during his lifetime, and also, how the property will be distributed at the grantor’s death. Irrevocable trusts are a valuable tool for Medicaid planning, as property contained in a properly-drafted irrevocable trust is not countable or assessable by Medicaid.

Durable Power of Attorney

A durable power of attorney is a legal document that gives someone else the authority to act on your behalf. Without this document, if you become incapacitated, no one will be able to perform tasks such as paying bills, applying for Medicaid or signing contracts without first getting court approval.

You have the choice of having this document take effect immediately upon signing, or only upon your incapacity. Appointing a durable power of attorney does not take away your ability to make decisions, it merely empowers another person to act on your behalf.

You have the option of limiting the acts your designee is authorized to take on your behalf, or you may give a broad power of attorney that will allow him or her to handle all your financial and legal affairs. You may choose to revoke or modify your power of attorney at any time.

Health Care Power of Attorney

While a durable power of attorney allows your designated representative to handle legal and financial matters, it does not automatically allow that person to make medical decisions on your behalf. For that, you need a health care power of attorney. The person you designate as your health care power of attorney will make all decisions regarding your medical care if you are unable to do so. In that situation, your doctor would take all instructions from this designated individual. If you have specific wishes regarding medical care, it is advisable to also have a living will. Your health care agent is strictly bound to follow those instructions when making medical decisions on your behalf.

Living Will

Many families face the agonizing situation of having to make medical decisions for a loved one who is currently unable to make his wishes known. Often, family members disagree on the best course of action, or on what they believe your wishes would be. To alleviate this potentially traumatic situation, you can execute a living will.

A living will allows you to provide instructions for treatment you wish to receive or decline under specific circumstances. Some of the situations you can choose to address in your living will are:

  • Whether you wish to receive certain life-prolonging treatments, such as CPR, respirator, blood transfusions, etc. at the end of life.
  • Whether you wish to receive IV fluids or food if you are in a coma from which you are unlikely to emerge
  • Whether you wish to receive palliative care to keep you as comfortable as possible even if it hastens your death

Providing clear instructions in a living will can save your family members from having to make those anguishing decisions themselves, during a time of crisis.