Essential Documents Every Senior Needs

Joe Lynyak (Host): Hello to our audience and to our guest, Sandy Glazier. My name is Joe Lynyak, and I'm the host of Truth4Seniors, a podcast located at Truth4Seniors.net, which is dedicated to giving adults 60 years and older clear, honest, actionable information on health, finances, technology, housing, and legal rights. This is the third of our initial baseline episodes intended to provide you, as a senior or a near-senior, with considerations relating to your estate planning and critical health-care considerations. We've entitled it "Essential Legal Documents Each Senior Needs or Should Consider."

Joe Lynyak (Host): Let me introduce our speaker, Sandy Glazier, who is the founding member of Sandra D. Glazier PC, located in Troy, Michigan. She is extraordinarily well credentialed. For example, she is a member of the American Bar Association's Section of Real Property Law, the liaison to the Commission on Law and Aging, a member of Michigan's Probate Council, and on the advisory board of the Notre Dame Tax and Estate Planning Institute, and was recently inducted into the National Association of Estate Planners and Councils Hall of Fame. Welcome, Sandy.

Joe Lynyak (Host): To begin the discussion, there are essential legal documents that may be important to assist in a senior's personal finances, including your estate after you pass away, as well as your wishes for medical care when you get sick — and maybe in a situation where you're unable to express your wishes for the type of medical care you want to be administered. Sandy's going to identify these documents and provide an overview of their use as well as issue areas to consider. So, Sandy, can you walk us through your thoughts about legal documents that our audience should consider? I'll turn it over to you.

Sandra Glazier (Guest): Sure, Joe. Thanks for having me. There are a number of documents that I typically recommend to clients. I don't always recommend that a client has to have a trust, but there are certain core documents that I believe clients should consider. The first among them, in no particular order, would be a will. A will directs where your assets will go that are solely titled in your name upon your death. It has no operative meaning while you're alive, and it needs to be admitted to probate in order to control the disposition. But what it does do is override certain statutory defaults — because if you don't have a will, your state has a default provision that indicates where your assets will go.

Sandra Glazier (Guest): Some people may be surprised, thinking, "Oh, all my assets will go to my spouse." But depending on the size of your estate, whether you have children, and whether the children are the children of your surviving spouse or not, your state's default laws may not result in all your assets going to your surviving spouse. A will also gives priority to individuals to act as the fiduciary — personal representative, or in some states an executor — who will end up administering your assets in probate.

Sandra Glazier (Guest): The next document, a designation of patient advocate, is really a medical power of attorney. It's called a designation of patient advocate in some jurisdictions; it's a durable medical power of attorney. These documents typically will not have effect until you are unable to participate in medical decision making on your own. In some jurisdictions you can revoke them even if you are incapacitated. You get to give direction as to who you want to be your surrogate decision maker when you're unable to make decisions on your own. I think it's a really important document, because otherwise the state sets a priority list of who will be able to act on your behalf. In most jurisdictions, if you don't have one, in an emergency you may still be able to get medical treatment — but non-emergency situations will require you to go and get a guardian.

Sandra Glazier (Guest): Now, the mere fact that you have one of these documents doesn't necessarily avoid guardianship — but Joe and I said we'd leave that discussion for another day, given how much we're trying to cover. Being able to select somebody who knows you, who thinks along the same lines as you, who has some indication of what your desires are, is important. This designation of patient advocate can include advance directives, or sometimes it's coupled with a document often called a living will. That living will gives directions for whether you want to be on life support or not. A lot of people think, "Oh, it's only about pulling the plug." But if you have strong feelings that you want life-saving efforts engaged in, even when there is no hope of returning to the ability to function as you would hope to, that's important to state too. These documents work not only for "I don't want to be kept on life support," but also "I do want to be kept on life support" — and making those feelings known to your family.

Joe Lynyak (Host): That's an interesting point. Last year I suddenly took very ill and did not have these directives in place. I found out from discussing it with my daughters that they really had no idea what my viewpoints were. Going forward, I fixed that. But it's an important discussion to have, and it can be very sensitive with family members.

Sandra Glazier (Guest): And, Joe, it's important not just to have the document, but to have the discussion with your family — and not just once, but to revisit that discussion, because as we collect life experiences our feelings about some of those things may change. I can give you a personal example. My mother recently passed. She had a medical directive, and in it she indicated that she wanted pain medication even though it might hasten the moment of her death. My sibling had a copy of the document, and we'd had the discussion — but in the heat of the moment, when you're making these kinds of decisions, you may forget about those discussions. So having clear indications of what you want matters.

Sandra Glazier (Guest): You can't cover every hypothetical, but having the discussion and covering a broad range of topics in that instrument can be really helpful. I talk about organ donations. I talk about, if I'm unable to give informed consent, would I want to be able to donate blood to a family member, or perhaps a kidney? I could be kept alive, and a kidney or bone marrow may be needed by a family member. Without that kind of directive to your patient advocate, they would not have authority to do something like that. So this is an important discussion to have — not only with your lawyer, but also with your family physician — to understand the instrument, understand your options, and address a broad range of hypotheticals. There's no one set form. If you can't afford an attorney, your bar association or your state legislature may have adopted a form you can put in place until you can have that discussion with an attorney.

Sandra Glazier (Guest): Another instrument that can be really important is a durable power of attorney to address your financial assets, and — we're on a podcast — to address your electronic assets. In the absence of a power of attorney that addresses those issues, there may be limited access to your online persona: all your family pictures now up in the cloud, emails, banking accounts. Many of us don't get paper statements anymore. Without an instrument that permits somebody, when it's needed, to access things on your behalf, family members may not even be able to ascertain what assets you have. So a durable power of attorney that addresses all types of assets can be extremely important.

Sandra Glazier (Guest): Think about who you're going to appoint. While these documents are helpful to avoid probate, there may be times when you want to use them in conjunction with a probate proceeding. Don't pick the oldest child if the oldest child cannot manage money — or, for your medical power, if they're going to break down and have emotional difficulty fulfilling the directives you've set forth. Pick somebody who can actually perform the fiduciary duties you're appointing them to undertake. Don't pick the child who's got a lot of creditors, or who thinks they've always been owed something, or the child who just lives with you because it's convenient but has never been able to be independent. There's a lot of thought that goes into these instruments — the powers you give people, whether you want guardrails, whether you want them to act with somebody else, whether you want oversight. When it comes to a medical power, I recommend only one person acting, but there's nothing wrong with saying you'd like them to consult with others. You want the doctors to know whose direction they're going to take.

Joe Lynyak (Host): One of the other things I've seen occur many times — I've got friends who are doctors who say, for medical directives, to have copies available. If something gets buried in someone's medical file under existing records because of ongoing treatment, the doctors and medical personnel need to know it's there. It's important to point out that it exists and what your wishes actually are, as opposed to defaulting to something at the last minute.

Sandra Glazier (Guest): Yes. To carry that on, one thing I do for my clients is make them a little card they can put in their wallet indicating that they have designated a patient advocate, with the contact number for that advocate — because if you fall over on the corner and the ambulance picks you up, they're probably going to go through your wallet, but they're not going to find your medical directive in your pocket. Make sure all your treating physicians have a copy. The hospital you're likely to go to can have it inserted into your medical file. There are apps to put that information on your phone. Make sure your patient advocate has a copy of the medical power in case they need to use it — it's not enough for them to know they're appointed if they don't have a copy of the document.

Sandra Glazier (Guest): Couple that with what I call a HIPAA release form — a general HIPAA release form. Who do you want to have access to your medical records? It's an important document for your kid who's going off to college, whose medical records you no longer have access to. Unless they provide a HIPAA release form to the school, if they have a breakdown or something serious happens at school, the doctors may not be able to discuss what's going on with you. Doctors are bound to keep your confidences; they can't tell family members what's in your file. They can listen to you, but they can't provide information back. A HIPAA release form can provide a check and balance, so a family member who's not making the medical decision can nonetheless know what's going on and voice concerns to the patient advocate.

Sandra Glazier (Guest): If you're going to use a trust, I like trusts because they're a way of managing assets during your lifetime as well as upon death. They cover disability and can provide a lot of safeguards beyond the scope of what we can go into today. But if you decide to use a trust, it's also important to use funding documents — to assign your tangible personal property to the trust, to title your assets properly, and to designate the trust as beneficiary of the assets you want it to control. A lot of banks prefer to deal with a trustee rather than an agent under a durable power of attorney. And if you do a power of attorney, provide it to your financial institution while you're healthy. They're more likely to abide by one that's been vetted by their legal department while you're alive and competent than one someone shows up with after you're disabled.

Joe Lynyak (Host): Our audience may be aware that we don't have time to talk about the tax implications of a trust — but sitting here in California, you basically have to have one, because going through probate is a nightmare compared to having your assets in a trust. There are profound economic considerations, and it certainly requires a long discussion about how you organize your assets.

Sandra Glazier (Guest): A trust is also a way to keep your finances much more private. When you have to go through probate, people can figure out the overall value of the assets — even in my jurisdiction, by the inventory fee you have to pay the court. So if you want a semblance of privacy about your assets and how you've disposed of them, a trust can help. It's not just management during your lifetime, but privacy — to the extent you have a functional family. Dysfunction tends to result in whatever you do ending up in the probate court system. There are lots of customized things we can do in terms of guardrails, protections, notices, and who can receive accountings. In some jurisdictions, there's a "quiet trust" — you may be able to keep the terms from a minor until they reach a certain age. Maybe you don't want them to know they inherited a lot of money before they've reached 25, because otherwise they might be spending money they don't yet have.

Joe Lynyak (Host): It's always the frontal-cortex issue you've got to consider.

Sandra Glazier (Guest): It can also provide creditor protection for the beneficiary later on, which you may not be able to provide in a simple will. But there are times when a will provides a greater level of protection than a trust. If you're in a Medicaid planning situation for a surviving spouse, you're going to want any trust set up for that spouse through a will, because you won't be able to protect assets and qualify a surviving spouse through a trust. So there's no one-size-fits-all. That's why it's important to have a discussion with an estate planning attorney to whom you've disclosed your financial assets, considerations, and goals, so they can discuss the options and you can make an informed decision.

Sandra Glazier (Guest): I also wanted to address what some people call the "poor man's will" — creating joint accounts with the idea that the account will pass to the joint owner on death, and that owner can pay bills and funeral expenses. But few people realize the dangers of a joint account. In most jurisdictions a joint account creates a presumption that the joint owner owns at least half the assets, even though they may not have contributed a penny. If they have a creditor issue, that creditor may end up garnishing your account up to one half its value. It's better to use TOD or POD — transfer on death or pay on death — designations for bank and credit union accounts if the goal is to have the account go to a particular person immediately upon your passing. Check whether your bank offers "accommodating party" accounts, or a power of attorney just over that account, so the person acts in a fiduciary capacity rather than as a co-owner.

Sandra Glazier (Guest): One thing you raised, Joe, is not a document your lawyer prepares but one your doctor prepares. If you're at an advanced stage and there's a likelihood you may die within — depending on your jurisdiction — a year or six months, you may want to talk to your doctor about a POLST. It may be called different things in different jurisdictions, but it's a medical directive that lays out a plan for what types of treatment will be provided. If you're living in a senior facility, even independent living, and something catastrophic happens and they have to call EMS, you want that document on file — because otherwise EMS is going to use extraordinary means when they come in. And then, later on, there's the DNR — do not resuscitate. To me these are all component documents of an estate plan. There may be additional documents, but these are the core documents most people should consider. If they don't have them, they should get them; if they do, they should review them on a regular basis. I tell my clients a presidential election year is a good marking point for pulling your estate planning documents out. These aren't static documents — life changes, family dynamics change, financial circumstances change. Pull your documents out, take a look, and verify they still do what you want. If they do, put them back away. If they don't, revisit them.

Joe Lynyak (Host): A few concluding notes, since our goal is to keep this within a reasonable range — something you can listen to while having a cup of coffee in the morning. Most of what we talked about today is almost entirely governed by state law. That means there are differences between documents and how they operate that you, as a senior, need to understand. Naturally, you can call Sandy if you're in her jurisdiction and she can help you, but we on the podcast are not offering legal advice. You have to obtain qualified legal advice and conduct additional research on your own situation.

Joe Lynyak (Host): Sandy, thanks so much for providing us with this valuable information. We'll revisit some of these areas in future episodes, but it's a very useful starting point for seniors to consider. And thanks to our audience. As we improve the Truth4Seniors website at Truth4Seniors.net, we'll be publishing summaries of our podcasts along with useful materials and where to find them, and making the episodes available for viewing on your computer. In the meantime, you can email us at contact@truth4seniors.net and we'll send you a list of the items we discussed today. Finally, your comments are encouraged and welcome — tell us what you like, what you don't, and issues of concern to seniors that we should address in the future. Again, Sandy, thank you very much. Thanks to our audience, and everybody have a great day.

Sandra Glazier (Guest): Thank you, Joe.