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Key Legal Issues for Seniors

Authored By: Legal Aid Services of Oklahoma, Inc. LSC Funded
Contents

Information

Common issues we encounter at Legal Aid

  • Planning for incapacity
  • Transferring property after death
  • Dealing with reduced income

Seniors need someone to take care of our affairs if we are unable to do it ourselves, and:

  • An orderly way to pass on our property when we die.
  • Often, debt counseling.
  • Planning for incapacity and death
    • Power of attorney
    • Advance Directive
    • Guardianship
  • Way to transfer property
    • Will
    • Trust
    • Transfer on Death Deed

Power of Attorney

  • Authorizes someone to act in your place. Deal with insurance, banks,landlords, etc.
  • Must have capacity, i.e., understand what you’re signing.
  • Pick someone you trust to serve as attorney-in-fact.

You specify how broad you want it to be.  One task or everything.

“Durable power of attorney” stays in effect if you lose capacity.

  • Does not have any effect after you die
  • Does not give ownership of your property
  • Can be “springing,” but that presents problems
  • Document signed and notarized.
  • Witnessed by two non-related witnesses.
  • Give to your attorney-in-fact
  • Can be revoked with another writing, notarized
  • No reporting required, unless you specify.
  • Cheaper and easier than a guardianship.

  Forms: contact Legal Aid

Advance Directive
Advance directive A/k/a “Living will” is governed by statute. Includes several different provisions:

  • Allows you to specify if you want to be kept alive by artificial means if you go into an irreversible coma, etc.
  • Names health care proxy
  • Organ donations
  • Forms widely available at Hospitals and Online:, just search at each site for "advance directive"
    • OKDHS.org
    • OUMedicine.com
    • OKLaw.org
  • Call Legal Aid 855-488-6814
  • Email OKSPLASH@laok.org

Advance Directive, to execute:

  • Must have capacity. Know what you’re signing.
  • Pick someone to make medical decisions,plus an alternate
  • Sign in front of two witnesses. Notary not required.
  • Give to your health care proxy
  • Give to hospital, doctor
  • Can change by drafting a new one

 Guardianship, a Court order appointing someone to make decisions and act in your best interests with regard to financial and/or personal matters.

  • The ward (person who is the subject of the guardianship) must lack capacity
  • If there is no durable power of attorney and/or advance directive, and the ward no longer has capacity, need to get a guardianship.\
  • Requires court proceedings and annual reports.
  • Deals with finances, personal care, or both.
  • Conservatorship available for financial issues.
  • Can also be named “representative payee”v ith Social Security.
  • Procedure
    • File in county where ward or guardian lives
    • Serve ward
    • Present evidence of incapacity. Letter from doctor.
    • Cost: $235 filing and service fees. Attorney fees extra.
  • Plan
  • Reports
    • Forms: Hire attorney, Neighbor for Neighbor
  • Revocation  Example: medical situation resolved,guardianship no longer necessary
  • Requires court order
  • If contested, must show guardianship no longer necessary
  • Sometimes court is asked to substituteguardians
  • Guardianship more complicated than power of attorney, but not unduly difficult.

Wills, trusts, transfer on death deeds

  • Goal: orderly transfer of property upondeath.
  • Most things can be handled with beneficiaries. They pay out to those persons upon your death.
  • Insurance, bank accounts, CD’s, mutual funds, IRA’s, etc.
  • House is most common asset thatrequires planning.
  • Joint tenancy
  • Passes to spouse upon death
  • Potential problems if you put other heirs on the title

What happens if you die without a will

  • Intestate succession
  • Probate

Will

  • Less expensive to draft than trust
  • Requires probate
  • Not helpful for minor assets
  • Even if you have beneficiaries on everything, may be good to have will in case you miss anything

Trust

  • Passes to heirs without probate
  • Pay attorney to draft
  • Requires updating

Transfer on death deed

  • New procedure in Oklahoma
  • Names beneficiaries for house
  • Recorded before death. When you die, beneficiaries record death certificate.
  • Inexpensive. Probate not required.

Dealing with debt

  • As incomes decline, many seniors have difficulty paying debts as they come due.
  • Debt counseling can help establish priorities, put minds at ease.
  • Social security exempt
  • House, car, furniture, clothes, exempt.
  • Where to get help
    • Credit Counseling Centers of Oklahoma
    • Legal Aid Services of Oklahoma (www.legalaidok.org or 888-534-5243)
    • SPLASH Line: 855-488-6814
    • Email:  OKSPLASH.org
    • OKLaw.org

Download - Key Legal Issues for Seniors

Last Review and Update: Oct 30, 2014
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