Planning for Incapacity

None of us – young or old – knows when we will become ill or incapacitated. One of the best things that you can do for your family is to ensure that plans are made BEFORE such an incident arises. This spares loved ones the difficulty and anxiety of trying to determine how things should be handled and the frustration and uncertainty of having to guess what their loved one’s true wishes would have been if they were not incapacitated. Incapacity planning should only be done under the supervision of an attorney with expertise in the areas of Elder Law. Not all legal documents are created equal and an Elder Law attorney will ensure that your Durable Power of Attorney, Health Care Surrogate Designation, and Living Will address your needs as a senior.

Please review the information below and contact our office today to schedule a consultation.

When is a person considered “incapacitated”?

From a legal perspective, incapacitation occurs when a person becomes unable to make decisions due to a physical or mental change. This can occur slowly over time, such as with the onset of dementia (Altzheimer’s disease, etc.) or suddenly due to an illness or accident (being in a coma, on life support, etc.). Incapacity can be long or short-term. Fortunately, some simple legal planning can eliminate most or all of the hassle and stress involved in making decisions during a period of incapacity.

Here are several components that can be used to plan for incapacity:

  • Financial Durable Power of Attorney
  • Health Care Surrogate Designation
  • Living Will

Financial Durable Power of Attorney

One of the most important legal documents comprising an estate plan is the Financial Durable Power of Attorney (DPOA). This gives authority to a pre-designaed individual to handle all financial decisions in the event that the individual is unable to make them for himself. Trust is a very important consideration when deciding upon a Durable Power of Attorney, and a DPOA should not be entered into lightly. Your Elder Law Attorney can assist you by discussing all of the potential issues and making an informed and educated decision.
It is a common misconception that a spouse or adult child can automatically step in and make financial decisions for an incapacitated individual. The truth is, however, that there is no automatic right for a spouse, adult son or daughter or other loved one to make these decisions. Without the DPOA, the individual seeking the right to make decisions would have to petition the court through a guardianship proceeding for the right to act on behalf of a loved one. Even then, guardians are required provide the courts with annual accountings of how funds were handled. Because guardianship procedures can be costly and time consuming, it is very important to have a DPOA to alleviate the need for a guardianship.

Living Will

The Living Will is a document that directs medical providers on whether you want life-prolonging treatment withheld if you are incapacitated and in a “terminal condition,” an “end stage condition,” a “persistent vegetative state,” or severely brain damaged. In this document you can express your choices and values regarding:

  • Assisted nutrition (tube feeding)
  • Tube or intravenous hydration
  • Dialysis
  • Artificially assisted respiration
  • Pain medication which may cause addiction
  • Antibiotics

You can also designate whether you would like your body or body parts donated to scientific research and/or transplants.

Health Care Surrogate Designation (Power of Attorney For Healthcare)

If you become incapacitated, it is important to you and your loved ones that your wishes regarding health care and treatment be followed. To ensure that your wishes regarding health care will be respected should you become incapacitated, you should have a properly executed Health Care Surrogate Designation which appoints a person whom you trust to act on your behalf and make health care decisions on your behalf. With this document, the person chosen to make the decisions must make decisions that he or she believes you would have made under the circumstances if you were capable of making decisions yourself.

The Bottom Line

It is best to make plans for your future before you need them. You never know when you will need to have plans in place, so be proactive. Our office can help guide you in making these important decisions and can assist you by drafting documents that will ensure that your wishes will be carefully documented and followed should you become incapacitated. Taking this important step will benefit both you and your family.

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