Are Your Legal Affairs in Order?
There are several reasons why Iowans, and especially elderly Iowans, should periodically review their legal affairs. First, elderly Iowans are at higher risk of failing health. Second, advance planning can reduce the burdens on family and loved ones. Third, it can save time and expense. Lastly, it can help protect your money and property for your future needs or your estate plan. The issues can be complex and confusing. Some of the more important legal planning issues involve Powers of Attorney, Living Wills, Estate Planning and Medicaid Planning.
Powers of Attorney - Financial and Health Care. Financial and health care powers of attorney are two useful, low-cost tools for handling your affairs if you become disabled. You can make power of attorney appointments any time, provided you can still make decisions for yourself.
Financial Power of Attorney. A financial power of attorney lets you name someone as your agent to handle your finances if you need or want help. This document also may be known as a general power of attorney. Under Iowa’s Uniform Power of Attorney law, a financial power of attorney takes effect immediately unless stated otherwise. If you want your power of attorney to be effective only if you can’t make your own decisions, you need to include this in the document. Under Iowa’s Uniform Power of Attorney law, the financial power of attorney is also “durable.” Many people want their financial power of attorney to be “durable.” This means it will last even if you become completely disabled. It is very important to name someone you trust to be your agent under the power of attorney. No one is required to check on the person you appoint. Even though you can cancel a power of attorney at any time, you may not know something is wrong until too late. If you can no longer make decisions and don’t have a power of attorney appointment, you may need a conservatorship set up in court to oversee your finances.
Health Care Power of Attorney. A health care power of attorney lets you name someone to make health care decisions for you if you can’t make them yourself. For example, if you are unconscious from an accident or illness, the person you name can make treatment decisions for you. Without a health care power of attorney, your doctor may consult with your family about health care decisions. If you do not have family or they cannot be reached, a guardianship might be needed.
Many forms, including power of attorney forms can be found through the internet. Before using on-line forms, you need to make sure they are valid under Iowa law and that you know how to properly complete and sign the forms. If you find out that a power of attorney form is not valid, it may be too late to correct the error.
Guardianship/Conservatorship if you can no longer make your own decisions. Without a financial or health care power of attorney your family, friends, or the state may be required to establish a guardianship and/or a conservatorship over you through the courts. A guardian makes decisions about your personal needs and care. A conservatorship is for managing your finances. Setting up a conservatorship and guardianship requires the time and the expense of hiring an attorney and going to court.
Living Wills (Declaration Relating to Use of Life Sustaining Procedures). A living will is a written document in which you say whether health care providers should withdraw life-sustaining procedures if you are in a terminal condition. For example, you may be in terminal condition if you had a serious accident or stroke and were being kept alive by some kind of mechanical device with no realistic hope of recovery. If you have a living will, you are effectively deciding whether or not the device should be turned off. Without a living will, family members would usually decide. This can be a problem if your wishes for treatment are not the same as your family or if family members disagree about your end-of-life treatment.
Iowa Physician Orders for Scope of Treatment form (IPOST). This is a form for use by persons who are frail and elderly or have a chronic, critical medical condition, or a terminal illness. The form documents the full range of a patient’s end-of-life healthcare wishes through a physician’s order. The IPOST form should be available to all of a patient’s healthcare providers in all medical settings whether in a hospital, out of hospital, or getting emergency treatment. The form can include a “do not resuscitate” order, whether or not you want full treatment in an emergency, or if you want or don’t want feeding nutrition by tube. The IPOST form does not replace your health care power of attorney form or living will or out-of-hospital do-not-resuscitate order. The form simply puts all this information in one place. The form is not yet in wide use. Ask your doctor, nurse practitioner, or physician’s assistant about completing the form. The IPOST form and more information can be found through the Iowa Department of Public Health website: idph.iowa.gov/ipost
Estate Planning. Under Iowa law, you can decide who receives your property by executing a valid will. If you don’t have a will, your property will be distributed to your heirs. If you are married, this means your spouse will generally receive all your property. (There is an exception to this rule if you have children from other marriages.) If you have no spouse, then your property will go to your children. If you have no spouse or children, then your property would go to other relatives.
Whether you have a will or not, an issue to consider is whether your estate must be probated. Probate is the court action used to distribute a person’s property after death. Whether probate is necessary depends on the type and value of the property you own. Estates must generally be probated to transfer property that is held solely in your name. For example, if your home is in your name alone, your estate would have to be probated to transfer the property. Probating an estate can be costly and time-consuming. There are a several ways to avoid probate. You can make your spouse or other party a joint tenant with right of survivorship on the deed to your home. You can name beneficiaries for your investment accounts, retirement accounts, and life insurance policies. For bank accounts, you can establish joint or payable-on-death accounts. Setting up a trust is another option. Most options have advantages and disadvantages. You may want to consult an attorney before taking any action. Whether probate is necessary depends on the type and value of the property you own.
Declaration of Designee for Final Disposition. This is a form to make clear who you want to make decisions about what will be done with your body after death. If you have concerns about who will make the decisions, you should use this form. If you have not named someone with this form, Iowa law decides who may make these decisions. If you are married and not legally separated, your surviving spouse would have the right to make these decisions. If you have no surviving spouse, then your surviving children would make the decisions (majority rule) and so forth. The form needs to be signed in front of two witnesses or a notary.
Medicaid Planning for Nursing Home Care, In-Home Care, or Assisted Living Facility Care.Unless you have enough income, savings or insurance to be able to pay for long term care indefinitely, it is important to know the rules for Medicaid eligibility. Medicaid may be needed to help pay for nursing home, in-home, or assisted living facility care if you have serious health problems. If you are single, you must have less than $2,000 in assets to be eligible. If you are married, your spouse may be able to keep a large amount of your combined income and assets and still you will qualify for Medicaid.
It is also important to know the rules about whether you can give away assets and still qualify for Medicaid for nursing home, in-home, or assisted living facility care. If you give assets away within certain time periods before applying for Medicaid, you may not be eligible when you need it. In addition, the state of Iowa may try to recover the assets you gave away. Depending on your age, your specific finances, the state of your health and other factors, you may still be able to safely make gifts. The rules for Medicaid Planning are complex. For help with Medicaid Planning issues you should contact an attorney with expertise in this area. You can also contact the Legal Hotline for Older Iowans.
This information is provided by the Legal Hotline for Older Iowans 1-800-992-8161. The Hotline is a project of Iowa Legal Aid that is partially funded by the U.S. Administration on Aging. The Hotline is a free, confidential service for all Iowans 60 or older with questions on non-criminal legal matters.
Iowa Legal Aid provides help to low-income Iowans.
To apply for help from Iowa Legal Aid:
- Call 800-532-1275.
- Iowans age 60 and over, call 800-992-8161.
- Apply online at iowalegalaid.org
If Iowa Legal Aid cannot help, look for an attorney on “Find A Lawyer.” A private attorney there can talk with you for a fee of $25 for 30 minutes of legal advice.
*As you read this information, remember this article is not a substitute for legal advice.