Attorney talks to seniors about legal documents

RANCHO SANTA FE — Understanding legal documents can be overwhelming, especially when mapping out personal health care decisions. On Aug. 23, attorney Scott Stewart with California Estate and Elder Law helped make five of the essential documents for long-term planning more understandable.

“Scott provided valuable information to attendees regarding important documents everyone needs to have in place to manage financial and health care matters,” said Terrie Litwin, MSW, executive director of the Rancho Santa Fe Senior Center.

The legal documents Stewart discussed were an advanced health care directive, which allows a third party to manage health care decisions; a HIPAA waiver, which provides access to health care information; durable power of attorney, which allows a third party to manage finances; a will, which provides direction to the court about the distribution of someone’s assets after death; and a trust, which allows a third party to manage your assets while you’re alive but incapacitated and also after death.

While all these documents are vital, Stewart said one of the most important is the health care directive.

“The reason why I think that is your most important document is that it gives someone the ability to manage all of your health care decisions,” he said. “What it does is, it gives somebody the ability to make those decisions for us.”

Embedded in this health care directive is the whether a person wishes to be kept alive or not.

“If you leave that section blank, your health care directive still does 90 percent of what it’s designed to do, which is to manage all health care decisions in the event that you can no longer communicate your wishes,” Stewart said. “Without that document, there is no default.”

Stewart went on to say that a health care directive appoints someone as an agent who can act on a person’s behalf. He said it is also advisable to have a first, second and third in line as an agent in the event someone is no longer able to fulfill the responsibility.

A health care directive empowers somebody to make a medical decision, and also provides them with the authority to discontinue care or not. The agent is a health care proxy.

Stewart explained that health care proxies can come in different forms such as spouses, children and friends. Professional health care proxies consist of a private fiduciary such as social workers. Corporate fiduciaries are another option. It’s up to an individual as to what they prefer.

In Stewart’s opinion, the importance of this legal document doesn’t just come in to play when someone is near death or has died — it is more about capacity. An example he shared was someone with Alzheimer’s disease or dementia.

Stewart said the agent is the individual in charge of certain responsibilities such as hiring a caregiver, placing an individual in a memory care facility, managing medication or interfacing

with the person about their care because they are no longer competent to care for themselves.

An agent has the authority to make that decision.

Stewart also wanted participants to understand the value in choosing an agent who has consistent viewpoints about health decisions.

“If you do not believe in being kept alive forever, don’t pick someone who, based on their own moral or religious belief, is going to be full code because, they have the authority to do that,” he said.

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