Estate planning is often thought of as a strictly financial endeavor. Obviously, asset transfers are at the core, but you should also prepare for eventualities that you may face toward the end of your life. This is why most estate planning attorneys provide elder law assistance as well.
Incapacity Among Elders
You should accept some inconvenient truths when you are considering the challenges that you may face during your twilight years. Everyone has heard of Alzheimer’s disease, but a lot of folks are surprised when they learn about its widespread nature.
Alzheimer’s strikes almost one third of people that are 85 years of age and older. Once you reach the age of 67, your life expectancy is 85 to 87 years depending on your gender.
This is not the only cause of incapacity, and in fact, most people that are residing in nursing homes experience cognitive impairment. There are also folks that cannot handle their own affairs because of physical ailments.
If you do nothing to prepare for possible incapacity, interested parties could petition the court to appoint a conservator to act as your representative. This is a necessary safeguard on the one hand, but on the other hand, there are potential drawbacks.
First of all, it will take some time, and people in your family may disagree with regard to the correct course of action. This can cause hard feelings during a difficult time when your loved ones should be coming together in support of one another.
Worst of all, the person that is empowered by the court may not be the individual that you would have chosen yourself when you were capable of sound decision-making.
Proactive Incapacity Planning
You don’t have to surrender all control of your fate if you take the right steps in advance. With the proper planning, you can prevent a conservatorship, because there will be handpicked representatives in place.
Your incapacity plan will be centered around documents called durable powers of attorney. The “durable” designation is relevant, because a power of attorney that is not durable would no longer be in effect upon the incapacitation of the grantor.
We are using the plural because you can include a durable power of attorney for property along with a durable power of attorney for health care decision-making. The same person could be the agent for both purposes, but this is not required.
If you have a revocable living trust, you would act as the trustee while you are alive and well. To account for this eventuality, you would name a disability trustee to assume the role if it becomes necessary.
The Health Insurance Portability and Accountability Act (HIPAA) was passed in 1996 to protect patient privacy. This piece of legislation prevents doctors from sharing medical information with anyone other than the patient.
To give your agent and anyone else that you choose the power to communicate freely with your physicians, you should include a HIPAA release.
Another incapacity planning document that will complete the plan is a living will. With this type of will, you state your preferences with regard to the use of artificial nutrition and hydration, resuscitation, mechanical respiration, comfort care medications, and organ and tissue donations.
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