Planning for Elder Care in Mississippi

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1 Planning for Elder Care in Mississippi

2 I. Wills What is a Will? A will is a writing which makes a testamentary disposition, which is a gift to be made upon the death of the maker. If valid, a will allows a person to give their property as they see fit. Why do I Need a Will? If you do not prepare a valid will, the State of Mississippi will decide who takes your property. The state has rules that make presumptions as to how you intended your property to be disposed of. This means that your intentions may go unfulfilled if you do not have a valid will. The administrator of your estate must post a surety bond in an amount equal to your total estate. Also, property appraisals must be made for the courts and the courts must approve of the final disposition of your property. However, these bond and appraisal costs can be waived in your will. The result is that more of your assets will be distributed according to your wishes. Can I Prepare My Own Will? It is recommended that you consult an attorney licensed to practice law in your state to have your will prepared. By having an attorney prepare your will, you can have confidence that your property and possessions will be distributed as you see fit. Words and phrases that are clear to one person are not always clear to another. There could be a number of disputes that could arise during the probate of your estate. 2

3 An attorney licensed to practice law in your state can assist you in avoiding pitfalls of having an invalid will. Having an attorney prepare your will helps to ensure that your loved ones and beneficiaries will not experience any unexpected costs or additional hardships that come with the disposition of an estate. Are There Any Requirements to Make a Will? There are two (2) requirements to make a will: (1) The person making the will must be 18 years old; (2) The person making the will must have a sound and disposing mind when making the will. What is a Sound and Disposing Mind? There are three (3) parts involved in determining this issue: (1) The maker must understand and appreciate the making of the will; (2) The maker understands the person or organization that will be receiving the property; (3) The maker must be capable of determining how he/she desires to give away the property. 3

4 What is the Most Common Challenge to a Will? Over the years, the most common challenge to the validity of a will in Mississippi has been undue influence. A court will presume that undue influence exists if those contesting the will can show the following: (1) That the deceased and the beneficiary had a personal relationship; and (2) That the beneficiary had something to do with the making of the will. Undue influence is most often alleged where the deceased allowed a beneficiary to drive or ride with the deceased to the attorney s office to prepare the will. The presence of the beneficiary in the same room of the deceased when making the will is another example of undue influence. This presumption of undue influence may be overcome by meeting a very difficult test. With this in mind, it is extremely important to take the precautions necessary to avoid this challenge. What if I Wish to Change my Will? An update to a will is called a codicil. For the codicil to be valid, it must be executed in the same method as your original will. Thus, if an attorney prepared your will, you should return to see an attorney to make any desired changes. What if I Wish to Revoke my Old Will and Prepare a New One? To revoke all past wills, your new will should contain a statement that it revokes all past wills. Also, by destroying the old will, you are physically revoking it. 4

5 If your new will does not contain a statement that it revokes all past wills, then it only revokes the provisions in the old will that pertain to the property devised in the new will. How Specific Should My Will Be? When you wish to leave items to designated people, you should be specific in the description of these items and in naming those individuals. Less significant items may be distributed through a residuary clause. This clause gives all property that is not specifically devised to designated residuary beneficiaries. This clause will also allow your estate to maintain control over any future gain or acquisitions that may have not been previously considered. II. Power of Attorney A power of attorney is a written instrument by which one person, the principal, appoints another person, the attorney in fact, as his/her agent. The attorney in fact is then given the authority to perform certain specific acts on behalf of the principal in matters relating to property and/or personal matters. A power of attorney is a planning tool to arrange for a trusted person to assist you with your bill-paying and other financial affairs, as needed. The law assumes that a person has the capacity to make their own health care decisions as well as decisions regarding financial affairs and property. A durable power of attorney contains an added provision that the attorney in fact s authority remains in effect if the principal loses capacity to make decisions. 5

6 Mississippi does allow for the instrument to become effective only when, and if, the principal becomes incapacitated. However, there is no set standard in place to resolve the question of when a person has lost capacity to handle his own affairs. A power of attorney can have a time of termination included where the authority given to the attorney in fact ceases. A principal has the option to nominate the conservator or guardian of the estate in a durable power of attorney. This places the attorney in fact in a position where he/she is accountable to the appointed conservator or guardian of the estate. The conservator or guardian would possess the same power to revoke or amend the power of attorney as the principal would have before incapacitation. There is no particular form required for a power of attorney. Also, there is no law stating that a power of attorney must be recorded or filed unless the power of attorney gives the attorney in fact authority to act with respect to real property (i.e. land, house, farm). However, it is wise for the principal to have the document recorded. It is also a good idea for the attorney in fact to sign the power of attorney document. This indicates that the agent acknowledged and accepted the position prior to any incapacity that may occur down the road. It is crucial that the person you wish to make your attorney in fact be one that you have absolute trust in. This person will have basically the same control over your financial affairs as you do yourself. With that in mind, trust is of the utmost importance and if your relationship with this person were ever to change in a negative way, you would need to make the changes necessary to eliminate the power of attorney immediately. 6

7 III. Advance Health-Care Directives Similar to a power of attorney, an advance health-care directive is also a planning tool for health care decision-making. Often referred to as a living will, this is essentially a power of attorney instruction with respect to health-care decisions that may need to be made in the future, during a time of incapacity. This agent would be the one to give consent to medical treatment of procedures such as surgery if the situation arose. Capacity is defined under the law as an individual s ability to understand the significant benefits, risks and alternatives to proposed health-care and to make and communicate a health care decision. Unless the principal specifies another method of determining capacity in the document, this decision regarding whether or not an individual has capacity will be made by the primary physician. You may name an alternate agent to act on your behalf if your first choice is not willing, able or reasonably available to make these types of decisions. An owner, operator or employee of a residential long-term health-care institution may not serve as an agent unless they are a close relative. You have the option to limit the authority of your agent. This is not necessary if you wish to rely in your agent for all health care decisions that may need to be made. If you elect not to limit your agent, he/she will have the authority to: (a) Consent or refuse to consent to any care, treatment, service or procedure to maintain, diagnose or otherwise affect a physical or mental condition; 7

8 (b) Select or discharge health-care providers and institutions (including nursing homes); (c) Approve or disapprove diagnostic tests, surgical procedures, programs of medication, and orders not to resuscitate; (d) Direct the provision, withholding or withdrawal of artificial nutrition and hydration and all other forms of health-care; (e) However, unless the directive so provides, an agent or surrogate is not authorized to consent to the admission of an individual to a mental health institution. This health-care power of attorney takes effect when the principal loses the capacity to make his own health-care decisions and ceases to be effective upon determination that the principal has recovered capacity. An individual is presumed to have capacity and has a right to make their own health-care decisions while maintaining that capacity, even if that individual has previously given an advanced health-care directive. Again, you do have the option to place limitations on the extent of the authority and power given to your agent. You may also designate a particular physician to have primary responsibility for your healthcare needs if you prefer. In Mississippi, there is a statutory Advance Health-Care Directive form. This form must be executed either in the presence of two qualified witnesses or a notary public. With respect to witnesses, one of the two must not be a relative or a beneficiary to your will. Also, neither witness can be a health-care provider or employee. This form 8

9 does not have to be filed with any court. This form can be revoked or replaced at any time, even orally. It is important to remember that as with the power of attorney, the person you wish to be your agent be one that you have absolute trust in. Considering the nature and authority that your agent will have, it is important to remember that if your relationship with this person were ever to change in a negative way, you would need to make the changes necessary to revoke the agent s power immediately. IV. Planning After Capacity Often, caregivers are faced with the need to assist a loved one who has lost the ability to make crucial decisions and act in their own best interest. When this occurs, and the loved one has not executed the documents necessary to give a caregiver the authority to act, a guardianship or conservatorship may have to be established. With respect to a conservatorship, the court will make this appointment to assist an individual who, by reason of advanced age, physical incapacity, or mental weakness is incapable of managing their own estates. The court is not required to make an incompetency determination in a conservatorship. However, this is required for a guardianship position. The duties, responsibilities and powers of a guardian and a conservator are the same once appointed. In Mississippi, the most common appointment of a surrogate to make decisions and manage the affairs of someone who is incapacitated is a conservatorship. 9

10 V. Conservatorships In Mississippi, a test of management competency is required in order to meet the necessary standard. This test can be answered by considering the factors of ability to manage, improvident disposition, dissipation of property, susceptibility to influence, deception by others, and other similar factors. The conservatorship proceeding may be brought in court by relatives, friends, or by the Department of Human Services under the Vulnerable Adults Act. The court may appoint a conservator to take charge of the estate or to have custody of the person or both. Once the petition is filed in court, a hearing must be held to establish the need for conservatorship and proper notice must be given to the appropriate parties. To prove the need for a conservatorship, two physicians who are duly authorized to practice medicine, or one physician and a licensed psychologist, each must perform a personal examination of the subject party and each must make, in writing, a certificate of the result of such examination. These certificates must be filed with the clerk of the court and become part of the record in the case. The physicians may also be called to testify at the hearing. Once appointed, the conservator has broad powers set out by the law for the proper use and disposition of the ward s property. This position of conservator carries the same duties, powers and responsibilities as are conferred upon guardians of minors, including the duty to make annual accounts to the court. ***A special mention of gratitude should be given to Barry Jones, Esq. of Jackson, MS for his assistance in the making of this presentation. 10

11 This presentation was developed by Catherine V. Kilgore, Elder Law Project Director, North MS Rural Legal Services, P.O. Box 767, Oxford, MS 38655,

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