December 3, 2010

Written by Patricia O’Malley

The holiday season is a time to spend with family, and an opportunity for millions of caregivers to check on their loved ones and help them plan for the upcoming year. Preparing legal documents involving health and care decisions with aging relatives is intimidating and often avoided, but it may give everyone involved great peace of mind—the most compassionate gift of all.

Those who start the process early often report feeling enormous relief and satisfaction once the project is completed. Planning ahead can provide a steady voice, ease of mind, and allow time to simply be together once it is put behind. As a registered nurse and in-house counsel to national home care company Griswold Special Care, I have witnessed firsthand the anxiety and conflict that can result from a lack of planning.

The subject of life-planning is not easy to bring up, especially with a close relative or friend. For family caregivers, one way to break the ice and start the discussion is to provide an example of your own advance healthcare documents and will. Thinking and talking about the subject can be difficult at first, but it will help seniors know that their wishes, options or even fears are considered and will help guide families through the maze of decisions.

Three Essential Documents

As practitioners and experts on aging, we should provide both direct care and indirect guidance and support to our clients and their families. There are three essential documents every adult, especially seniors, should have: a will, a power of attorney, and advance directives.


•Considered one of the most important legal documents, a will is a written plan for the distribution of assets and is vital for seniors who want to ensure their property and possessions are divided as intended. Without a will, the state—not the senior—will decide who is entitled to their assets. To assist an appointed representative (executor) to administer the estate, it is helpful to make a list of assets with account numbers and locations of safety deposit keys, bonds and jewelry. As a will must be executed with some formality, seniors should consult an attorney to ensure that their wishes are carried out to their satisfaction. A well-written, detailed will can protect relatives from disputes over material goods.

•Through a power of attorney a person grants authority to an agent to make nonmedical decisions and handle all affairs if the grantor is unable to speak for themselves. Without it, either a court will appoint someone to act on behalf of an incapacitated senior or the power may fall less formally to someone the senior might not be comfortable with. It is important to start drafting a power of attorney document early: family caregivers can sit down with seniors to discuss the terms calmly before going to a lawyer to avoid the stress and pressure of hourly rates. Unless conditioned, a power of attorney can take effect immediately upon signing; to avoid this, seniors can specify the conditions that must be present for the document to be effective—illness, incapacity, unconsciousness or during surgery. No matter how often seniors might tell their friends and family what they want to be done, to guarantee a senior’s wishes are heard, a power of attorney must be in writing, signed, witnessed and, optimally, notarized. A senior should keep the original power of attorney in a safe place and give copies, with the information of where the original is located, to an agent and successor agents.

•Advance directives take the form of a living will and a medical power of attorney. A living will lets caregivers, family members, and healthcare providers know the healthcare wishes of a senior if they are unable to tell them directly. If seniors are unable to make medical decisions for themselves, a medical power of attorney appoints a person who can make these decisions for a senior. An advance healthcare directive should be personalized and reflect life-sustaining treatment, pain control and organ donation preferences as well as where a senior wants to receive care—at home or in a facility. It is important to have a detailed living will to avoid misinterpretation. A senior’s primary healthcare practitioner should have a copy of the living will and medical power of attorney to keep with their medical records and present to providers.

Seniors should discuss the responsibilities associated with the power of attorney or medical power of attorney before choosing agents to assure they are willing to accept the responsibility of the position and are willing to act assertively on the individual’s behalf in the case of an emergency, actively advocating the senior’s wishes.

Caregivers and healthcare professionals should encourage seniors to revise these legal documents periodically, as long as they are able to do so. As people age, and personal, medical and financial situations change, seniors should evaluate whether the terms are still appropriate and if the originally selected agents are still the right people for this responsibility.

Planning ahead is a gift to those left behind that eases passage through otherwise stressful or troubled times and communicates the grantor’s wishes, even when they are no longer able to continue to communicate them personally.

Patricia O’Malley is the General Counsel and Head of Licensing and Regulatory Affairs at Griswold Special Care, the nation’s oldest non-medical homecare company. Before joining Griswold, Ms. O’Malley worked in quality assurance and risk management for a five-hospital system and later for private health and business law practices. Ms. O’Malley is a registered nurse with a Masters degree in gerontology.

As published in Dorland Health.