Louisville Medicine Volume 69, Issue 9 - Page 24



On Dec . 14 , 2021 , the Cato Society welcomed Larisa Gilbert , elder law attorney . She ’ s a graduate of the College of William & Mary and the University of Virginia law school . Dr . Charlie Oberst , Chair of the Cato Society , introduced her as an expert specializing in elder law , although she deals with clients of all ages .

When talking about estate planning , she advised , you must plan for both while you ’ re alive and after you ’ re gone . First and foremost , an estate plan must include incapacity planning ( who will make medical decisions for you when you cannot , end of life wishes , and how you want your money managed while you ’ re incapacitated ). This involves identifying your “ trusted helpers .” Whom do you trust the most to make important decisions for the rest of your life , and after your death ? It ’ s all about maintaining your choices and your control .
Everyone has an estate plan : either you have created one for yourself , or failing that , the state has created one as its “ best guess ” for how most people might want their property , money and affairs managed after death . Using the state ’ s default laws , the courts will decide who will make financial and medical decisions for you if you cannot , who will get your property and money , and who will care for your minor or disabled children . If you do not have a self-created estate plan , you will go through probate . Probate is the court process that determines whether you have a valid will at death , who will be appointed to wind up affairs , and who will receive your accounts and property . Probate can be expensive , time consuming , and are matters of public record , so it is wise to try to avoid it with thoughtful preparation - not to mention , the state might end up trusting the wrong people .
There are four documents which are most helpful when estate planning : A last will and testament , HIPAA authorization , and most importantly , durable medical powers of attorney and durable financial powers of attorney ( POA ). POAs give your trusted helpers the power to help you while you ’ re still alive . Ideally , design one that can be used immediately and is also durable ( no expiration date ). When you exercise a durable medical POA , you must consider the “ Spiderman Rule ,” that is , “ with a lot of power comes a lot of responsibility .”
You must be willing to talk in detail with your trusted helpers about the circumstances under which 1 .) you would not want to live , and 2 .) you would want them to take a risk so that you might
22 LOUISVILLE MEDICINE improve . These conversations should happen annually , to account for changes in circumstances and opinions . POAs are a lot more flexible than a living will and can adapt to changing medical knowledge and circumstances . A living will or advanced directive should supplement your medical POA , not replace it . It provides broad guidance but can ’ t anticipate every possibility and is no help with the day-to-day needs of a sick , injured or dying person .
The HIPAA authorization form is important in that it designates who gets access to your medical information . It does not give a trusted helper authority to make medical decisions - you need a medical POA for that .
The last will and testament names a person to wrap up your affairs ( and names a person to care for your minor child , if applicable ) after you are gone . This should include a provision for contingent Supplemental Needs Trusts , in case one of your beneficiaries is receiving any type of government benefits . When they inherit from you , their share will be held in a Supplemental Needs Trust with specific terms that will prevent beneficiaries from being kicked off their benefit eligibility , while still allowing access to their money .
Finally , trusts are private agreements between trust maker and trustees . More simply , it can be thought of as a treasure chest that comes with a lock , keys and a book of instructions about who can open the chest , when the chest can be opened , what can be taken out and who gets the treasure . Trusts can be revocable ( you can change the rules and take the treasure out at any point ) or irrevocable ( no “ take backs :” you have given someone else the lock , key , and power to take the treasure out ). Trusts can be helpful to maintain your right to choose . They control who gets what , when they get it , who distributes it , etc .
In conclusion , there were four major take aways from the presentation :
1 . Make sure you have good , responsible , honest trusted helpers .
2 . Establish durable medical and financial powers of attorney .
3 . Regularly revisit the documents discussed to account for changes in your opinion , medical knowledge and circumstances .
4 . Do not delay : the future is on the way .
Kathryn Vance is the Communication Specialist at the Greater Louisville Medical Society .