Baby Boomers were born between roughly 1945 and They are now aged 68 to 49. In the U.S. alone, 76 million children were born in that period.

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1 SANDRA CHINN-GILSTRAP Of-Counsel (434) WWW. WOODSROGERS. COM BABY BOOMERS BOOMING Baby Boomers were born between roughly 1945 and They are now aged 68 to 49. In the U.S. alone, 76 million children were born in that period. Golden Boomers are Baby Boomers who have retired or are about to retire. 1

2 THE ERA OF GOLDEN BOOMERS The Era of the Golden Boomers began January 1 st, in 8 Americans is age 65 or older. VIRGINIA S 65+ POPULATION As the Baby Boom generation races toward traditional retirement age, the number of older adults in Virginia will reach 1.8 million by 2030 more than double that population in

3 I DON T WANT TO GROW UP! Studies find that Baby Boomers are in a state of denial regarding their own aging. Non-lawyer providing a power of attorney that authorizes the attorney-infact to deal on the principal s behalf with all of the principal s assets or accounts, whether or not maintained by the particular non-lawyer, exceeds his/her legitimate interests in the principal s affairs and is engaging in the unauthorized practice of law. 1.2 UPL 4-7 VSB SELF ANOINTMENT SELF APPOINTMENT SELF DEALING Boomers have not planned for their aging, death, retirement and/or care. Thus elders are the subject of elder abuse. DSS IS CALLED TO ASSIST 3

4 PREVENTION Talk early and often Advance Medical Directives Powers of Attorney Guardianships/Conservators Guardianship for Adult Incompetent Children STEP-BY-STEP GUIDE 4

5 ADVANCE MEDICAL DIRECTIVES ALLOWS THE PRINCIPAL TO: Designate a certain treatment to be provided; and/or Designate a certain treatment to be withheld (e.g., living will); and/or Designate an agent to make health care decisions on the principal s behalf. ADVANTAGES: POWER OF ATTORNEY Flexible Expansive, narrowing Helps avoid stress on family Avoids legal proceedings Guardianship and conservatorship hearings Suits to sell or encumber property DISADVANTAGES: Gives control of assets to another person 5

6 LIMITED: POWER OF ATTORNEY TYPES serves a specific and limited purpose DURABLE: Survives incapacity SPRINGING: Only becomes effective upon incapacity or other event as defined in instrument. THE SHOES OF A PRINCIPAL Managing Assets And Making Personal Care Decisions: Paying bills and accessing accounts Selling, leasing, transferring, encumbering real estate Communicating with physicians Making personal care decisions such as placement in nursing home, rehabilitation center, or a hospice Making health care decisions Handling legal affairs Contracting to hire home care workers Handling legal affairs, IRS, retirement accounts, etc. Making gifts Funding irrevocable/revocable trusts 6

7 IT S SOOO COMPLICATED! DIVORCE It is not the law that is complicated; it is that humans are complicated! S T E P S SIBLING RIVALRY L I F E M A T E S MINI MENTAL EXAMS TO ASSESS CAPACITY Cognitive Signs Short-term memory loss Communication problems Comprehension problems Mental inflexibility Calculation problems Disorientation Behavioral Signs Delusions Hallucinations Poor grooming/hygiene Emotional Signs Significant emotional distress Emotional inappropriateness Mitigating Factors Stress/grief/depression Reversible medical factors Normal fluctuations in mental ability in older adults Hearing/vision loss Individual differences 7

8 NOBODY S HOME NO PLANS NO POA NO MEDICAL DIRECTIVE Calls for: Guardian of the person Conservator of the state WHO S INVOLVED? 1. Incapacitated Person 2. Guardian 3. Conservator 4. Respondent 8

9 PROCESS OF APPOINTMENT Who may file? Any person may file, but non-family members must give notice to at least 3 family members. Where to file? Jurisdiction is proper in the circuit court of the county/city in which respondent is located, resides now, resided prior to becoming a patient, or owns property. Va. Code PROCESS OF APPOINTMENT BEFORE Standby Guardianships and/or Conservatorships VA Code AFTER The real need for intervention VA Code Guardianships and/or Conservatorships Planning for the roles to be filled and to assume duties immediately upon death of family or adjudication of incapacity. 9

10 RIGHTS LOST WHEN DEEMED INCAPACITATED DRIVE: The Department of Transportation shall not issue a driver s license to any person when, in the opinion of the Department, the person is suffering from a physical or mental disability or... to any person who is unable to understand highway warning or direction signs. Va. Code PURCHASE OR PACK: It shall be unlawful for any person who has been adjudicated legally incompetent [or mentally incapacitated]... to purchase, possess, or transport any firearm. Va. Code :2 VOTE: No person adjudicated incapacitated shall be a qualified voter. Va. Code GUARDIAN (VA CODE ) Makes all personal decisions (medical, housing) Must obtain court authorization to Change the ward s residence to another state Terminate parental rights Initiate change of marital status Encourages ward to act on his own behalf Acts in best interests of ward Must file annual report with DSS VA Code Section VA Code Section

11 CONSERVATORS Powers in Va. Code Manages money and resources (May not petition for divorce or defend in divorce) Encourages ward to act on his own behalf Acts in best interests of ward To provide for those in your after life! WILLS: FOR THE AFTER LIFE Executor Trustee Determine if we re giving specific bequests or conveying the entire estate (Real, personal, or mixed) Guardian for minor children 11

12 PROPERTY LOCATOR FORMS THANK YOU! Sandra Chinn-Gilstrap Of-Counsel Suite 302 (434)