When I was younger, I played a lot of baseball. It’s a sport that I miss playing dearly today, and whenever I think back to my years on the mound at the City Park in Shelby, rounding the bases, my heart is gripped by the nostalgia I feel. As a young man I had never given much thought to playing anything else, especially not softball. But the reality is, once I joined the Navy, I found myself involved in more than a few softball tournaments – and on many occasions the enlisted were pitted against the officers. It was all in good fun, but let me tell you, there were times when the enlisted beat the officers by a long shot.
I am reminded of my years playing baseball and softball thanks to the American Legion World Series that just ended in our town. The Chapin-Newberry Post 193 of South Caroline wound up taking the Championship title, beating the team from New Orleans with a final score of 9-2.
With the wave of excitement that has swept Shelby, NC, on the heels of the World Series, I want to address a different set of bases; these are the four pillars of Elder Law, and when used correctly, you can score yourself a true grand slam.
The Four Pillars of Elder Law
Just as there are four bases in baseball, there are four principal foundations of Elder Law. Any time I give an educational talk or speak with a client, I prefer to start with talking about the foundations. The foundations are as follows:
- General Durable Power of Attorney
- Healthcare Power of Attorney
- Living Will
Now, many times I’ll get questions about these foundations, such as, “Why do I need a will if I already have a power of attorney?” or “Why would I need a power of attorney if I’ve already appointed an executor to my will?” These are all great questions that I will address in this post.
General Durable Power of Attorney
I always refer to this first pillar as the General Durable Power of Attorney, instead of just a Power of Attorney. The person that you appoint to act on your behalf is technically the attorney-in-fact, while the Power of Attorney refers to the actual document. It’s general because it covers all personal business, from bank accounts to cell phone bills to power to water, insurance, whatever needs to be handled. It therefore allows you to appoint someone else to handle your personal business should you find yourself out of commission for a temporary period of time. Once everything is set in stone, it is very difficult to change the terms. Take my cell phone bill for instance – my wife can’t even change my cell phone bill because I set up the account. Can’t change our family’s cell phone bill because I set up the account. I have to go do it because they won’t talk to her. That is how a General Durable Power of Attorney will work; whoever you appoint as your attorney-in-fact is the only one who has the power to negotiate matters like that.
Another question I have received regarding Powers of Attorney concerns debts. People have asked me, “If my mother names me in her Power of Attorney, do I become responsible for her debts?” It is an understandable fear that if you are designated a loved one’s attorney-in-fact, that you will thus become responsible for all of their negative financial situations. This is not true. Their credit will not affect yours, and vice verse.
Just like in baseball, you have to pack your team with people you can trust. You need to have people ready to come in off the bench, so you don’t want to just have a primary there. If your primary power of attorney is unavailable, you want to have a secondary person come in and serve. If your team has a primary, secondary, and even a tertiary attorney-in-fact, then that document is going to live with you for a very long time and will hopefully work for you for the rest of your life. That’s what we want it to do. So no matter the contingency or situation, it works.
I also encourage clients to check and see if their General Durable Power of Attorney has a durability clause in it, so if you have a power of attorney right now, you need to read through it and make sure it says that it survives incapacity or incompetence. If it doesn’t say that in the document, then it doesn’t survive incapacity or incompetence. Your best play in the game is to see an attorney if you want to either become an attorney-in-fact, or if you want to name one.
When the document is finally drafted, it should be a robust Power of Attorney, meaning it should not be just a few pages. Try going to the bank with that! They might tell you, “We’re not going to honor that document.” I see it all the time. What would you do in that situation? Your loved one has entrusted you as the attorney-in-fact, and when you go to exercise that role and help them carry out their financial obligations, the bank tells you that they are not going to honor your 1-2 page document. To protect yourself from this, have a robust power of attorney that specifically describes and elaborates on those banking powers and what your attorney-in-fact can do. I guarantee if you walk in with a power of attorney and drop that 25-page document on them, they’re going to take you seriously. You are not going to have any problems in that scenario. And heaven forbid there are problems, I’ll help you solve them.
Lastly, under Section 32A of the North Carolina General Statutes, the General Durable Power of Attorney needs to also be recorded at your local register of deeds in the event that you become incapacitated or incompetent. Now, you’re probably not going to know to do that if you’re incapacitated or incompetent, so I advise having that done ahead of time. And most of the time, seniors go ahead and choose to record those. You can also choose to hold them, but your attorney-in-fact needs to have instructions on how to record them.
Healthcare Power of Attorney
I feel very similarly about the second foundation, the Healthcare Power of Attorney. It should not be a simple document that merely lists what your attorney-in-fact can and can’t do. It should be a robust document that is detailed and descriptive. There is no room for guesswork or error when it comes to your healthcare planning.
Your second base on this healthcare field would also be to appoint someone to your team that you can trust, to handle your most important life decisions and when necessary, make very quick life and death decisions for you. Make sure that you appoint the proper captain to your team to come talk on your behalf to the healthcare facility, to the doctors, and to the nurses. I encourage you to make copies of those and make sure that your primary physician has a copy, and that they know who the point person is. And if you talk to a hospital, a nursing staff, or a nursing home or assisted living facility, they’ll tell you they love those because otherwise you’ve got multiple family members calling in, giving different points of view, and mixed messages. What are they supposed to do in that situation? Which road do they go down? Who do they listen to? Like I said, take the guesswork out for them and appoint someone you can trust to talk with them. Just like with the General Durable Power of Attorney, make sure that you stack the bench with a secondary and tertiary attorney-in-fact to fill in if the primary is unavailable.
The third pillar or base in the game is the Living Will, which is also called a Declaration for a Desire for a Natural Death. People feel strongly about those on both sides. If heaven forbid you find yourself in a situation where you’re terminal, incurable, incapacitated, there’s no chance of recovery – brain death, for example, has occurred and you’re only being maintained by artificial machinery, hydration, and nutrition – what do you want to happen in that situation? Do you want your healthcare power of attorney to make that decision? Do you want your kids to make that decision? Or do you want to take that guilt-ridden decision and make it yourself and say, “This is my statement of intent and this is what I want to happen”? A Living Will, or a Declaration for a Desire for a Natural Death, allows you the ability and the power to do that while you’re healthy, competent, and can make that decision for yourself.
A will completes the bases, making it the fourth one. You need to have that will so that you distribute your property how you want to, not how the government has decided that they want to distribute your property. If you do not specify how you want your property distributed, the government will decide for you through the various statutes in place. So you want to prepare yourself and appoint an executor as one of the team captains.
Let me clarify something about these bases: an executor and a will only have power after you pass away. They are worthless while you’re alive and have no legal power. The power or attorney and healthcare power of attorney have all the power while you’re alive. So your attorney-in-fact and those documents rule while you’re alive. When you pass, the will takes over.
A Home Run
If you round all the bases and have those documents in place, plus add in a Lady Bird Deed to protect your home, I call that a home run. The Lady Bird Deeds, also known as the Enhanced Life Estate Deeds, will guarantee a seamless transfer of your assets to the person that you appoint, normally a spouse. You will absolutely secure yourself a home run for the team if you lock in all of these documents.
You might be asking yourself, why don’t all seniors take these precautions and ensure themselves a home run with these four pillars? For one, the Lady Bird Deeds haven’t been around very long in North Carolina, so it’s a question of awareness. Before North Carolina adopted the deeds, we used traditional life estate deeds, but you had to draft those outside of the look-back period, which is three years for assisted living Medicaid and five years for nursing home Medicaid to come in and help pay for healthcare. The life estate deeds allow you to keep control of your property, but you had to plan with them five years ahead of time. And who knows when that’s going to happen? Waiting is an enemy, and who knows how long we’re going to be able in North Carolina to use an Enhanced Life Estate Deed or Lady Bird Deed? But right now, and for the last couple of years, we’ve been able to do that, which can save a home for a family even in a crisis or emergency situation.
When I grew up, the Cold War was going on, evidenced by images of Rambo and Reagan and Gorbachev working things out. And Russia was the place where individuals didn’t own property, and the government owned everything. This wasn’t so in the U.S. But now you have a tremendous turnover of property, of private citizens losing their homes and their property. I just think it’s fundamentally un-American. If baseball and the World Series is American, then losing your property – especially your house, which is the American Dream – due to a healthcare situation is, in my opinion, very un-American. If you look at the Founding Fathers, one of the great things they wanted to do, one of the things that set America apart were individual property rights and the right to pass on your property to keep it in the family.
So give us a call, and if you ask for the Home Run package, we’ll give you special pricing on that. If you want to get all your affairs in order, including protecting your house 100% against any liens including Medicaid liens, then call our office and mention the Home Run special. This is the package that the average person needs. You don’t have to be rich to do estate planning or elder law planning. Quite the opposite. You can abide by the foundations, guarantee a protection of your assets relying on all four bases of Elder Law, and really be set up for what happens throughout your life.
Call me if you have any questions:
Elder Law Attorney
McIntyre Elder Law
123 W. Marion Street, Shelby