Avoiding Conflicts Between Your Advance Healthcare Directive and Organ Donation Directive

            If you have or are thinking about obtaining an advanced healthcare directive, an organ donation directive, or both, this information is vital!  An advanced healthcare directive indicates which specific treatments are not desired at the end of your life—whether it be CPR, ventilators, or other life sustaining equipment.  People often think of an advance directive as an indication of when to “pull the plug.”  An organ donation directive indicates your desires about the donation of your organs and/or tissues upon your death.  Individuals may become organ donors in the State of Florida by 1) legally executing a Uniform Donor Card, 2) adding “organ donor” to your driver’s license, 3) legally executing a living will, or 4) obtaining an advance healthcare directive.

             A conflict between your advance healthcare directive and your organ donation directive may occur when you are, for all intents and purposes, dead (i.e. cardiac death or brain dead), but your body still functions so that your organs could be donated.  If you have experienced cardiac death or brain death, your organs are still functioning and may be donated.  However, if you have executed an advance healthcare directive, life sustaining procedures will cease upon your death, and organ death will soon follow.  Because of relatively quick organ death, the time to harvest your organs into a new recipient is extremely (if not impossibly) small.  Therefore, your advance healthcare directive essentially cancels out your organ donation directive because it has become impossible to keep the organs healthy long enough to place them in a recipient.

 To avoid this conflict, contact my office at 904-321-0987 so we can draft your documents to preserve and prioritize your end of life wishes.

Financial Exploitation of the Elderly

             The elderly are frequently targets of financial abuse; however, in these tough economic times, elderly victims are targeted even more frequently.  Abusers are not always fly by night repair men or individuals calling on the phone with a “free offer.”  Potential abusers of the elderly are conservators, caregivers, agents acting under durable powers of attorney, trustees, representative payees, financial planners, attorneys, family members, friends, and caregivers.

 Types of Elder Abuse

             Elder abuse is an act or failure to act by a person required to act that results in harm to an older person.  Forms of elder abuse include 1) physical abuse, 2) sexual abuse, 3) emotional and psychological abuse, 4) neglect, 5) abandonment, 6) self-neglect and 6) financial exploitation. 

             Financial exploitation is the illegal or improper use of an older person’s funds, property, or assets.  Examples of financial exploitation are 1) telemarketing fraud, 2) identity theft, 3) home improvement scams, 4) predatory lending, and 5) abuse of estate planning fiduciary duties.  In this article, we will focus on the abuse of estate planning fiduciary duties.

 Exploitation in Estate Planning

             Estate planning is the ordering of one’s legal (and sometimes non-legal) affairs in preparation of one’s incapacitation or death.  Individuals frequently maintain many estate planning documents including wills, codicils, trusts, power of attorney, health care surrogate, living wills, and other miscellaneous documents.  Often, an elderly individual will sign over some or all of their legal power as an individual to a trusted family member or caregiver.  An example of this is a power of attorney wherein an elderly individual will allow a trusted individual to make certain legal or financial decisions on their behalf.  The opportunity for financial exploitation here is rampant because of the vast power transferred in the legal document.  Even though the elderly individual may believe this person is a trusted individual, the individual may have their own motives, which may include wiping out the individual financially, involuntarily placing the elderly individual in a long-term medical facility, or prematurely making life or death medical decisions.        

 Warning Signs

             Behavioral signs of financial exploitation of the elderly are that the individual is withdrawn, afraid, secretive, or hesitant to talk freely with others.  Additional indicators of financial exploitation is that the abuser becomes overly protective of the elder individual, refuses to allow visitors, and/or isolates the victim from other friends and family. 

             Financial signs are unusual bank account activity (is the individual even capable of physically getting to an ATM machine, etc.); forged financial documents; documents that were signed or financial transactions that took place when the elder individual is mentally incapable of understanding the transaction or what s/he was signing; several unpaid bills after someone has been assigned this task; a change in spending habits; and someone who shows up and tries to weasel their way into the elder individuals life and finances.

 Prevention and Remedies

 Many of the above situations can be prevented by consulting with my office to ensure your legal documents not only reflect your needs and desires, but protect you from financial exploitation.

 If you believe someone is a victim of financial exploitation, contact my office so we can discuss your legal options, including possible criminal charges.

 

 

 

 

 

How to approximate marriage rights

Although this article, “How to Approximate Marriage Rights,” from the Orlando Sentinel was specifically written for same-sex couples in response to the Amendment 2 ban on same-sex marriage, this article is equally important to unmarried heterosexual couples.

By implementing a number of legal documents, a couple can come close to the same legal rights as marriage without being married.

Documents to achieve this goal are:  a will, a living will, durable power of attorney, real property deed, healthcare surrogate/healthcare power of attorney, domestic partnership agreement, co-parenting agreement, and a designation of funeral arrangements. 

Of course, each of the above-listed documents carries pros and cons.  Before you decide to sign any of these documents, please consult contact my office to schedule an appointment so we can achieve your goals while minimizing your risk. 

Read the full article.