Planning for Incapacity
In our introductory article we wrote about how many people do not take the time to plan for incapacity. In this piece we discuss the question “How do you want to be cared for if you lose the ability to make decisions and care for yourself?” The way to maintain some control over our lives when we are faced with mental incapacity is to decide beforehand who we want to handle our financial affairs and who will make medical and other health related decisions for us if we lose the ability to make our own decisions. The most common tools used for these purposes are called Powers of Attorney. Many married people assume that in the event of their incapacity, their spouse will have the legal right to make medical decisions for them and to handle their financial affairs. Parents also frequently assume they may act on behalf of their children for as long as their children are dependent on them. None of these assumptions are correct. In each case, powers of attorney are required. For many people, a General Durable Power of Attorney and a Power of Attorney for Health Care, frequently called an Advance Directive, are the most important estate planning tools they can prepare. A power of attorney grants power to a person, the Agent, to make or carry out instructions of the signer, the Principal. An Agent under a General Durable Power of Attorney has broad powers to deal with the principal’s property and property interests. Common powers granted include check writing, investing assets, paying taxes and dealing with governmental entities, gifting, prosecuting or defending law suits and, sometimes, having the authority to adjust an estate plan in the event of changed circumstances or changes in the law. Rather than sending your Agent on a scavenger hunt, be sure to prepare a list of your assets (including Digital Assets) and professional advisors for your Agent. A Health Care Power of Attorney grants the Agent general authority to make all health care decisions for the principal. A Health Care Power of Attorney will give specific direction about continuing or ending life support and withdrawing medically administered nutrition and/or hydration when the principal is no longer able to give informed consent to his care. In addition, an Advance Directive can give the Agent authority to make decisions regarding Do Not Resuscitate orders and Do Not Transfer orders. Your Health Care Agent is your advocate. As such, your Agent must be well informed about your care and be ready to step into your decision-making shoes and make sure you receive the care you want and do not receive the care you don’t want. In preparing yourself and your Agent for visits to your doctor may want to consider these questions. Be Prepared for the Transition; It May Come Unexpectedly Planning for incapacity involves more than signing powers of attorney for health care and financial matters. A periodic review of the transition from independence to dependence is a must. As a starting point, consider developing a summary of critical people your Agent(s) needs to know. Give this summary to your Agent as soon as you’ve written it. Give your Agent an updated copy every year. Make it a ritual on your birthday or other annual celebration. By keeping your Agents informed you increase the chances of receiving the care you want when you are unable to make decisions for yourself.