5 Common Myths about the Law and Aging


by Alyson C. Fudge

  1. I have a will, so my estate will not go through probate. The whole purpose of a will is to go through probate. That is the sole job of a will. Probate is the process of transferring assets out of the name of someone who has passed away and into the names of whomever they are supposed to go to next. This process occurs in the Probate Court in which the decedent either died or owned real estate. If you die with a will, the will provides direc-tion as to who gets what and who is responsible for taking the estate through probate. If you do not have a will when you die, there is a statute in each state which lays out a plan since the decedent did not decide for him/herself via a will.
  2. I have Medicare and a supplement, so that will pay for caregivers or a nursing home. Our system is set up to recognize two distinct areas of need and issues: Medical care/issues and Long Term Care needs/issues. Medical Care includes doctors, hospitals, prescriptions and brief nursing home rehabilitation stays under certain circumstances. Your health insurance pays for Medical Care and Medicare and your supplement are health insurance. Long Term Care involves caregivers and/or facilities like assisted living and nursing homes. Your health insurance does not and will not pay for this type of care—including both Medicare and Tri-Care. This type of care is paid for either individually and privately (write a check out of your account), by long term care insurance or by Medicaid.
  3. Mom/Dad/Spouse has Dementia and the memory loss and confusion is noticeable and occurs regularly—it’s time to have her/him sign a Power of Attorney. Just as you cannot wait until your house catches on fire to buy your home owner’s insurance policy, you cannot wait until someone has issues with mental capacity to have them sign the documents which are supposed to be done prior to someone having issues with mental capacity. If symptoms exist, it is likely too late to start waiving legal documents under a person’s nose. We have laws against that—and they involve the word “felony.”
  4. Mom/Dad/Spouse is lucid and still recognizes everyone—therefore, she/he is NOT legally incapacitated. An incapacitated adult is someone who, by way of physical, mental or medical limitations, needs assistance to make major decisions and manage his or her affairs. This includes needing help managing money, remembering medications, remembering what the doctor said and understanding and making major medical decisions, etc. Just because someone can carry on a lucid and logical conversation does not mean that they are not incapacitated.
  5. I am the spouse or the child of a sick or vulnerable adult, so as the “next of kin,” I can make legal and medical decisions and manage money. Spouses and adult children do not have magical legal rights to make decisions for another human being. The US Constitution gets in the way of that concept. The only way one adult can manage the affairs of, or make decisions for, another adult is by way of actual legal authority. This authority comes either from Powers of Attorney signed before there were any significant medical and mental issues, or by way of a Court Order. Being “next of kin” doesn’t provide clarity to the issue of who can or should be making decisions for Mom or Dad.