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The Honolulu Advertiser

Posted on: Sunday, December 12, 2004

Many put off getting legal affairs in order

 •  Coping with cost of care
 •  Elder care saps finances
 •  Discuss crucial issues while they're able
 •  It's your funeral, so plan the details yourself
 •  Workers need time for care of elderly
 •  Resources for seniors
 •  The experts
 •  Cost of golden years
 •  Legal tools for caregivers

By Dan Nakaso
Advertiser Staff Writer

The reedy sounds of recorded Japanese music drifted across Room 305 of the Mo'ili'ili Community Center as Theresa Henderson stretched and twisted herself along with 23 other seniors to help keep her 64-year-old body in shape.

But Henderson, wearing a towel around her neck to absorb the sweat, acknowledged that she takes better care of her body than her legal affairs.

She has not prepared a durable power of attorney, advanced healthcare directive or a will.

"No, nothing," Henderson said. "I guess I still think I'm going to live forever."

Henderson has four grown sons living on the Mainland and knows that they have no idea about her wishes in case she becomes incapacitated or dies.

"I know I'm prolonging it," Henderson said. "I guess it's because it's kind of scary to think about."

Many seniors flock to classes at such places as Mo'ili'ili Community Center to dance for exercise and pleasure, top, and to stretch their bodies to remain flexible and fit, above. Many, however, put off taking care of long-term health and legal matters, which doctors and other professionals say can produce crises in families. Such steps as preparing a will are done best when an individual is healthy, physically and mentally.

Photographs by Gregory yamamoto • The Honolulu Advertiser

Henderson is hardly unusual, according to Honolulu probate attorney David Larsen, whose latest book is entitled simply, "Death & Taxes."

"Most people don't do anything at all," Larsen said. "That's 70 percent of us. We don't make a will, we don't have a power of attorney. Then the government steps in and takes over when we croak. Then the family's in for some rude surprises."

In an acrylic-paint class at the community center, 80-year-old art instructor Charles Mason said he had just met with his attorney to review his will and living trust.

And that puts Mason in a distinctly select category of older people, Larsen said.

"The other 30 percent of us have a will or this other stuff," Larsen said. "But they haven't updated it since the 1980s. It might be good enough, but it might not. You especially need to review things like a will when you go through changes, such as a divorce or when a child dies or you get a son-in-law you don't like and you don't want him touching your estate."

The best time to start the paperwork is when people are physically and mentally healthy, said James Pietsch, an attorney and director of the University of Hawai'i Elder Law Program.

A family might produce an advanced healthcare directive that limits medical care for an Alzheimer's patient. But the patient signed it the day before, Pietsch said.

"The doctor can't be quite sure if the patient knew what he was signing," Pietsch said.

"We get calls every week from people saying, 'The bank says or the doctor says or whoever says that my mother needs to sign a power of attorney because she's mentally incapacitated,' " Pietsch said. "It's too late."

There are three documents every older person should have:

Durable power of attorney: A power of attorney that continues to be effective or becomes effective upon the incapacity or disability of the person making the power of attorney.

Will: A written declaration of how people want their estate disposed of after their death, which can also provide for certain other things to be done after they die.

Advanced healthcare directive: Applies to directives, instructions or even desires that a person may communicate in writing, orally or in some other fashion concerning decisions about his or her body.

The forms are available in a workbook from the UH Elder Law Program called "Deciding 'What if?' A Legal Handbook for Hawai'i's Caregivers, Families and Older Persons." The book is available for free at places such as the Mo'ili'ili Senior Center or through the Elder Law Program's Web site, www.elderlyaffairs.com.

Attorneys generally charge $1,000 to $2,000 to provide a customized package of the main three documents, Pietsch said.

Rob Palin, managing attorney for the intake unit of the Legal Aid Society of Hawai'i, recommends that seniors first call the society's Honolulu hotline at 536-0011 or the Neighbor Island toll-free number at (888) 536-0011. Even if they don't qualify for free, low-income assistance, the society's attorneys might be able to find low-cost legal help filling out the documents, Palin said.

"That gap group — the ones who are not eligible for free services and don't earn enough money to afford a private attorney — are the ones most in need of legal help," Palin said. "But we might be able to find them someone who charges half of the cost of a regular attorney."

The Elder Law Program's workbook and Web site also list reduced-fee and no-cost legal services to help people navigate through the documents.

Because without documents such as an advanced healthcare directive, families can be torn apart arguing whether to extend or end life support.

"It's a real mess," Larsen said. "The family starts going after each other, with one side saying, 'Keep Dad alive' and somebody else says, 'Well, I heard him say just last Thanksgiving that he didn't want to be kept alive.' "

Whatever forms a person signs, the key is to have the signatures witnessed.

"Without a witness, that will is dead, DOA," Larsen said.

Banks and financial institutions increasingly are also refusing to accept powers of attorney because accounts of elderly clients are sometimes drained by someone else, Pietsch said.

"We've seen cases where hired caregivers put wills and trusts in front of patients and end up owning the estate," Pietsch said. "Or banks are leery because the grandson could have said, 'Here Grandma, sign here,' then wipes out her account for drugs. It has become a growing problem as we see the proliferation of this information."

To help reduce problems in the future, people can also take their powers of attorney to their banks and doctors to make sure they'll be enforced.

They might even ask their doctor to put a note in their medical file saying the doctor has agreed to the terms, Pietsch said.

The point is to ensure that a person's medical and legal wishes are carried out, Pietsch said.

"We're trying to enhance autonomy and protect them from financial exploitation, abuse and neglect."

Ken Zeri, a registered nurse, and president and chief professional officer of Hospice Hawaii, agrees that elderly people should talk to their doctors about their wishes, beyond making sure everything's legal.

Otherwise, Zeri said, critical healthcare decisions could be made "in the midst of a crisis."

"We want to avoid that," Zeri said. "Having everything made clear in advance is far more powerful."

Reach Dan Nakaso at dnakaso@honoluluadvertiser.com or at 525-8085.

• • •

LEGAL TOOLS FOR CAREGIVERS

Source: "Deciding 'What If?' — A Legal Handbook for Caregivers, Families and Older Persons," James H. Pietsch and Lenora Lee. Available from the City and County Elderly Affairs Division, 523-4545, or at www.elderlyaffairs.com. The sample forms are for information only and aren't a substitute for professional legal advice.

1. Sample Durable General Power of Attorney — written instrument that allows a person to act as an agent for a senior. A durable power of attorney would still be valid even if the senior becomes mentally incapacitated. ( Download here (pdf file) )

2. Sample Short Form Advance Health Care Directive — directions from a senior concerning decisions about his or her medical treatment, body and life. ( Download here (pdf file) )