LEGAL ISSUES FACING US AS WE GROW OLDER FAQ

1. How can we, as we grow older, prepare for poor judgment, decreasing cognitive functioning, or incapacity?
2. What does it mean to be declared incapacitated?
3. What is a guardian?
4. What is a conservator?
5. What is a Living Will?
6. Will my Living Will created in the state where I used to live be valid in my new state of residence?
7. Who should be present when my Living Will is signed?
8. May a Living Will be revoked?
9. What should you do with your Living Will?
10. What is a Power of Attorney?
11. What is a Contingent Power of Attorney?
12. What is a Durable Power of Attorney?
13. What is a Durable Medical Power of Attorney or Advanced Directive?
14. Can you revoke a Durable Medical Power of Attorney or Advanced Directive?
15. What is a Durable General Power of Attorney?
16. Should a Durable General Power of Attorney be Contingent?
17. What does language in a General Power of Attorney look like?
18. May a Power of Attorney be revoked?
19. Does a person acting under a Durable Power of Attorney while the principal is under a disability, incompetence or incapacity have any duty to report to anyone?
20. May you sign a valid Power of Attorney after you become incompetent
21. Are there any formalities that should be followed in executing a Power of Attorney?
22. What is a Living (inter vivos) Trust?
23. Is a Living Trust necessary?
24. What is a Durable Do Not Resuscitate Order?


1. How can we, as we grow older, prepare for poor judgment, decreasing cognitive functioning, or incapacity?

You can do one or more of the following:

  1. Ignore it, pretend it will never happen, and risk the consequences;
  2. Rely upon your children or a friend to have you declared incapacitated and have a guardian, a conservator, or both, appointed for you;
  3. Sign a Living Will;
  4. Sign a Durable Power of Attorney for Medical Decisions;
  5. Sign a Durable (Contingent) Power of Attorney for Financial Matters;
  6. Consider an inter vivos (Living) Trust; and
  7. At the appropriate time, obtain a Durable Do Not Resuscitate Order.

2. What does it mean to be declared incapacitated?

An "incapacitated person" means an adult (18 years old or older) who has been found by a court to be incapable of receiving and evaluating information effectively or responding to people, events, or environments to such an extent that the individual lacks the capacity to (1) meet the essential requirements for his health, care, safety, or therapeutic needs without the assistance or protection of a guardian, or, (2) manage property or financial affairs or provide for his or her support or for the support of his legal dependents without the assistance or protection of a conservator.

A finding that the individual displays poor judgment, alone, shall not be considered sufficient evidence that the individual is an incapacitated person within the meaning of this definition.

A finding that a person is incapacitated shall be construed as a finding that the person is "mentally incompetent" unless the court order specifically provides otherwise. Virginia Code § 37.1-134.6.

3. What is a guardian?

A "guardian" means a person appointed by the court who is responsible for the personal affairs of an incapacitated person, including responsibility for making decisions regarding the person's support, care, health, safety, habilitation, education, and therapeutic treatment, and, if not inconsistent with an order of commitment, residence. Virginia Code § 37.1-134.6.

4. What is a conservator?

A "conservator" means a person appointed by the court who is responsible for managing the estate and financial affairs of an incapacitated person. Virginia Code § 37.1-134.6.

5. What is a Living Will?

A "Living Will" is a means for you to limit the steps that will be taken to prolong your life when you have no real hope of recovering from your illness, while ensuring that you receive medication or have medical procedures performed that are deemed necessary to provide you with comfort care or to alleviate your pain.

With a Living Will, you can indicate to the doctors and family members your health care preferences, and you can ease and protect your family members and your doctors from the difficulties and liabilities of making such decisions.

6. Will my Living Will created in the state where I used to live be valid in my new state of residence?

Not necessarily. A Living Will is a creature of state law, and a Living Will valid in one state is not necessarily valid in another. Thus, if you relocate from one state to another, you should check to be sure that your Living Will complies with the state’s law where you now reside.

In Virginia, Virginia Code § 54.1-2993 provides that a Living Will or advanced directive executed in another state shall be deemed to be validly executed for the purposes of this article if executed in compliance with the laws of the Commonwealth of Virginia or the laws of the state where executed.

7. Who should be present when my Living Will is signed?

In Virginia, your Living Will should be signed in front of two persons who are not your blood relatives or your spouse.

These two persons should know you and know that you are of sound mind.

Besides your own signature, your Living Will should contain a signature line for your two witnesses to sign above which there is the above-mentioned declarations.

8. May a Living Will be revoked?

Yes. One way is to rip it up and destroy it. See also answer to Question 14.

9. What should you do with your Living Will?

You should have more than one original. An original should be given to your primary treating physician. Others should be given to your spouse, a close friend, and your children. By doing this, you help ensure that others know about your Living Will and that your wishes are honored.

10. What is a Power of Attorney?

A "power of attorney" is simply an instrument that empowers another person to act as your agent with third parties. The agent, sometimes called an attorney-in-fact, need not be a lawyer. The person creating the agency is typically called the principal.

The power that you grant to the third person to act on your behalf may be general or it may be limited to certain kinds of transactions or time periods. The extent of the power depends upon how the power of attorney is worded.

To minimize risks, pick only someone you know and trust as your agent and consider limiting your power of attorney to confer only as much authority as is necessary.

11. What is a Contingent Power of Attorney?

A "contingent power of attorney" is a power of attorney that springs into effect at some stated date, event, or happening in the future.

In Virginia, a power of attorney (if it expressly so provides) may be made effective upon (1) a specified future date, (2) the occurrence of a specified future event, or (3) the existence of a specified condition which may occur in the future. Virginia Code § 11-9.4.

12. What is a Durable Power of Attorney?

A regular power of attorney automatically becomes ineffective if you, as the principal or maker of it, should become incompetent. But a durable power of attorney continues on in effect even though you become incompetent.

In Virginia, for a power of attorney to be durable it needs to contain the words "This power of attorney (or his authority) shall not terminate on disability of the principal" or contain other words showing the intent of the principal that such power or authority shall not terminate upon his disability, then all power and authority vested in the attorney-in-fact or agent by the power of attorney or other writing shall continue and be exercisable by the attorney-in-fact or agent on behalf of the principal notwithstanding any subsequent disability, incompetence, or incapacity of the principal at law. Virginia Code § 11-9.1.

13. What is a Durable Medical Power of Attorney or Advanced Directive?

A "medical power of attorney" is an instrument that gives your agent the power or authority to act on your behalf in making medical decisions.

Virginia Code § 54.1-2984 provides that an advance directive (durable medical power of attorney) executed pursuant to this article may

  1. direct a specific procedure or treatment to be provided, such as artificially administered hydration and nutrition;
  2. direct a specific procedure or treatment to be withheld; or
  3. appoint an agent to make health care decisions for the declarant as specified in the advance directive if the declarant is determined to be incapable of making an informed decision, including the decision to make, after the declarant's death, an anatomical gift of all of the declarant's body or organs, tissues or eyes.

An advantage of a durable medical power of attorney over a living will is that the former provides not only directions as to your wishes, but also an advocate to help ensure that your wishes are followed.

14. Can you revoke a Durable Medical Power of Attorney or Advanced Directive?

Yes. Virginia Code § 54.1-2985 provides that your advance directive may be revoked at any time by you:

  1. by a signed, dated writing;
  2. by physical cancellation or destruction of the advance directive by you or another in your presence and at your direction; or
  3. by your oral expression of intent to revoke.

Any such revocation shall be effective when communicated to the attending physician.

15. What is a Durable General Power of Attorney?

A typical power of attorney is an instrument that gives your agent the power or authority to act on your behalf in making financial decisions and carrying out financial transactions.

The broader the scope of the decisions the agent may make, the more general the power of attorney.

If the power of attorney (i) authorizes an attorney-in-fact or other agent to do, execute, or perform any act that the principal might or could do, or (ii) evidences the principal's intent to give the attorney-in-fact or agent full power to handle the principal's affairs or deal with the principal's property, the attorney-in-fact or agent shall have the power and authority to make gifts in any amount of any of the principal's property to any individuals or to organizations described in §§ 170 (c) and 2522 (a) of the Internal Revenue Code or corresponding future provisions of federal tax law, or both. Virginia Code § 11-9.5.

16. Should a Durable General Power of Attorney be Contingent?

From a pure risk of loss point of view, it is better to have a contingent power of attorney so that it does not become effective until some specified event. Many people make that event their incapacity.

Unfortunately, judgment can weaken long before you become incapacitated. And con-men and hucksters love to prey upon and take advantage of senior citizens.

Thus, a good argument can be made for not having incapacity be the contingency that makes your power of attorney effective. For you may need assistance, well before you become incapacitated.

Moreover, some doctors are unwilling to advise family members about their concerns over their patient’s deteriorating mental or physical condition because of patient privacy rights.

And having incapacity being the contingent event may force loved ones to have to go to court to have your competency determined.

Thus, you should talk to your doctor and make sure he is willing to advise family members should your physical or mental status begin to deteriorate. Unfortunately, doctors to whom we have gone for treatment for years sometimes retire or pass on.

Finally, contingent powers of attorney may create questions of validity when presented to third parties who do not accept the existence of the contingency making it effective.

If you have a family member who you know and fully trust, you may want to consider a non-contingent durable power of attorney.

But I recommend either

  1. keeping such a power of attorney in your lock box until that family member comes to meet with you to discuss whether it is time for you to turn it over to them, or
  2. delivering the power of attorney in escrow to a third-person (for example, another child who lives nearby or a close friend) who is authorized to release the power of attorney only if in his opinion you have become incapacitated.

Or you could structure the escrow arrangement so that the power of attorney is released if the third-person believes your judgment has become impaired or deteriorated.

17. What does language in a General Power of Attorney look like?

For example, it can be worded as follows:

"I, name, do hereby constitute and appoint (name) as my true and lawful attorney in fact (herein referred to as my "Agent") who for me and in my name, place and stead, may, on my behalf, execute on such terms and conditions as my Agent may deem proper all deeds, contracts, checks and other drafts, negotiable instruments, guaranties, leases, releases, disclaimers, waivers, bills of sale and other legal instruments, of every kind and character; sell any part of my real or personal estate; demand, sue for, recover and receive every sum of money, securities or other property of any kind due and owing, or that may become due and owing, to me; borrow and lend money from and to, and to disclaim the succession to any property or interest therein for the benefit, of any person (including my Agent and persons related to or having an identity of interest with my Agent); retain any assets coming into my Agent's possession; compromise claims; change realty to personalty, and vice versa; determine the rate of interest or income yield to be realized; assume a cash position; vote any and all shares of stock owned by me and, in furtherance of such power, execute discretionary proxies with respect to such shares; employ such agents, attorneys, accountants and any other persons and to make all such expenditures as my Agent may deem proper; purchase, invest in and reinvest in real or personal property of every kind and nature; appoint sub-agents and trustees and to delegate duties hereunder; give to any person acting as agent or trustee under instruments executed by me, or executed by my Agent on my behalf, such instructions and authorizations as I may have the right to give; transfer property to or from any trust which I have previously created or may hereafter create, including any trust as to which my Agent is trustee or the beneficiary (and all persons, including transfer agents, may fully rely on this authority in effecting transfers directed by my Agent); enter into any safety deposit box in my name and remove property therefrom; cancel or continue my credit cards, charge accounts, and membership in clubs and other associations; take custody of any wills, deeds, life insurance policies, contracts, securities and other important documents; institute, settle, appeal or dismiss litigation."

18. May a Power of Attorney be revoked?

Generally speaking, yes. You may revoke it by notifying the agent as well as any third parties with whom you empowered the agent to act on your behalf. You should also tear up the power of attorney.

19. Does a person acting under a Durable Power of Attorney while the principal is under a disability, incompetence or incapacity have any duty to report to anyone?

An attorney-in-fact or other agent empowered to act under Virginia Code § 11-9.1 (when the principal is under a disability, incompetence, or incapacity):

shall, on reasonable written request made by a member of the principal’s family or certain others who are interested in the welfare of a principal who is unable to properly attend to his affairs,

disclose to such person the extent to which he has chosen to act and the actions taken on behalf of the principal within the two years prior to either (i) the date of the request or (ii) the date of the death of the principal, if the principal is deceased at the time such request is made, and

shall permit reasonable inspection of records pertaining to such actions by such person unless such disclosure or inspection is specifically prohibited by the terms of the instrument under which he acts.

In all cases where the principal is deceased at the time such request is made, such request shall be made within one year after the date of the death of the principal. Virginia Code § 11-9.6.

20. May you sign a valid Power of Attorney after you become incompetent?

No. You must be legally competent to sign a valid power of attorney, thus showing the need for you to plan ahead.

21. Are there any formalities that should be followed in executing a Power of Attorney?

Yes. It needs to be signed and it should be notarized, that is, acknowledged before a notary public.

If it is a medical power of attorney, you must have two witnesses sign who are not the spouse or blood relative of the principal. It is, useful to have a medical power of attorney notarized too.

22. What is a Living (inter vivos) Trust?

An inter vivos trust, among other things, is a means of addressing property and income management, but not for making health care decisions.

It is typically created by the grantor transferring property to a trustee for the benefit of the person for whom it is established (called the donee or beneficiary).

In this context, the grantor is typically the beneficiary.

Moreover, the grantor often serves as the trustee until some stated event, such as the incapacity of the grantor, at which time a successor trustee will take over.

The successor trustee is specified to take over and manage the trust’s assets and provide for the older citizen when he or she should become incapacitated.

A trust is created by a document which identifies the trust assets, the person for whom the trust is established, the trustee (and his or her successors), and the terms that must be observed in managing and spending the trust assets.

But a trust is not effective unless it is funded. That means your assets must be transferred into it.

The disadvantages of a living trust include the expense of setting it up and the complexity of the arrangement.

A living trust is sometimes used by wealthy older Americans as a will substitute or as a means to transfer their assets to their descendants. A trust can be revocable or irrevocable.

23. Is a Living Trust necessary?

No. It depends upon your personal circumstances and your financial situation.

Not only can transfers to trusts affect Medicaid eligibility, but also they may or may not save money.

Typically, the very wealthy are the primary users of living trusts, although those with a history of Alzheimers in their families might want to consider them.

Unfortunately, living trusts are being aggressively marketed by some people.

Some of them misrepresent the costs and burdens of probate.

While in some states the probate tax can be significant, in Virginia it is only ten cents on a hundred dollars.

Thus, you need to be an educated consumer and comparison shop when considering such trusts.

See, for example, "A Consumer’s Guide to Living Trusts and Wills" stock #D 14535 which you can order by sending an e-mail to member@aarp.org or look at AARP’s web page at the following address: http://www.aarp.org/confacts/money/wills-trusts.html.

24. What is a Durable Do Not Resuscitate Order?

A Durable Do Not Resuscitate Order is a written physician’s order to withhold cardiopulmonary resuscitation from a particular patient in the event of cardiac or respiratory arrest.

It is issued by a physician for his patient with whom he has a bona fide physician/patient relationship as defined in the guidelines of the Board of Medicine,

and only with the consent of the patient, or,

if the patient is a minor or is otherwise incapable of making an informed decision regarding consent for such an order, upon the request of and with the consent of the person authorized to consent on the patient's behalf.

Cardiopulmonary resuscitation includes cardiac compression, endotracheal intubation and other advanced airway management, artificial ventilation, and defibrillation and related procedures.

A sample Durable Do Not Resuscitate form is attached.

I trust these Questions and Answers have helped clarify your understanding of legal issues you face as you grow older. Due to the rapidly changing nature of the law, information contained in these Questions and Answers can become outdated. These Questions and Answers are intended solely for educational and informational purposes. The information contained herein is general in nature and should not be a substitute for seeking the advice of an attorney. Please remember that individual circumstances may affect the manner in which the law applies to each situation.

These Questions and Answers are not provided for use or reliance by you or any third parties and do not purport to be exhaustive or to render legal advice for your particular situation or any other specific case. They are meant merely to assist you in sharpening the questions you might ask of your legal advisor in your particular case.

Please give me a call should you have any questions.

Tom Leggette