incapacity-planningMost of us realize that it is unrealistic to expect that accidents or misfortunes will never happen to us. We put off the need to worry about the possibility of incapacity until “someday.” Still, we do insure our autos, carry health insurance, and as soon as we have children, houses, or businesses; we do know we need a will. I suggest that young people as well as seniors also need to plan for handling incapacity, because it can happen to anyone at any age.

We need not expect the worst to happen, nor do we want to concentrate on avoiding every danger. That would keep us from fully living. The best solution is to make appropriate plans for someone to handle our affairs when we cannot, then get on with the business of living joyfully!

There are several documents that we can prepare in advance to deal with incapacity.

A Durable Power of Attorney is designed to give a person or entity chosen by you, the ability to act in your stead. This document can go into effect as soon as you sign it, or it can “spring” into effect when a specified event happens. For example, many people want the other person to act for them only if they are unable to act for themselves. This makes sure that they keep sole power over their affairs until they are truly disabled. The downside is that there can be delays in getting the necessary medical and legal authorization for that person to be able to act. It is an important decision and a matter for you to discuss frankly with your Estate Planning Attorney.

The Durable Power of Attorney is called “durable” because it does last even if you become incapacitated. It does not, however last after your death. At your death, your business affairs become the responsibility of the executor of your estate or trustee of your trust. Of course, those two jobs can be assigned to the same person or entity, but two separate documents must be prepared.

The person given Durable Power of Attorney does not automatically have the right to make decisions about your medical care and treatment. To give a person the right to direct your medical decisions, you must prepare a Medical Power of Attorney. In this document you may specify some decisions of your own now. Will you receive a blood transfusion? Will you have a medically recommended surgery? Giving someone the power to make those decisions will enable your doctors to act quickly and confidently on your behalf should you be unable to sign appropriate permissions for treatment.

Directive to Physicians, also known as a Living Will, allows you to choose whether or not you wish to be placed on life support, and under which specific circumstances. The form can be filled out to state you want to be kept alive at any cost or if the doctor states that there is no hope of recovery then you do not want to be kept alive or several options in between. Most of my clients want a family member to have authority to make the decision along side the doctor.

Authorization for Release of Medical Information will allow your family access to your medical records. The Health Insurance Portability and Accountability Act (HIPAA) is designed to protect your medical information from misuse. That is important, but it can also be a terrible problem for your family during a time of crisis. Suppose your family is trying to admit you to a medical facility that requires a particular HIPPA form that you have not signed. No one else can do it for you unless you have given that power to someone else. I include a provision in any general power of attorney or medical power of attorney that I draft that permits your agent to sign a valid authorization on your behalf if you are unable to sign the form that the doctor or hospital is requesting. That way, they can sign whatever form the doctor or hospital uses if you are unable to do so yourself.

A Revocable Living Trust can allow the person or entity you choose to take care of financial matters if you ever become incompetent. The trust will allow you to stay in charge until the need for someone else to step in arises. It avoids guardianship upon incapacity.

A Supplemental Needs Trust or Special Needs Trust can protect your assets in the event you become incapacitated. Sometimes there are financial consequences to incapacity. You may, for example need long-term care, which could drain your resources and impoverish your family. Your existing resources may prevent or delay qualifying for government assistance such as Medicaid or Veteran’s benefits. A well-crafted special needs trust or supplemental needs trust, on the other hand, would protect your resources. The resources in the trust would take care of you and your family and enable them to pay for the things Medicaid would not cover.

Peace of Mind
These preparations do take some thought and decision making, but they are worth the effort. The documents are very familiar to our office. We do not treat them as routine, but tailor them to your particular needs. We know how to manage the process to make it feel less complicated. It’s all about taking care of business so that you and your family can enjoy peace of mind.

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Leigh Hilton P.L.L.C