On October 28, 2018, an 88-year-old woman suffering from dementia was reported missing in La Mirada, as the Sheriff’s Department asked for help in locating her. Betty Giebelhouse apparently wandered away from her family’s home wearing pink pajamas and the family has no idea where she may have headed. Inevitably, seniors with dementia will need protection and assistance, not only with their daily living but also with their medical and financial affairs. Before that time comes, it is important to take the necessary steps to prepare with incapacity planning.
Loved Ones with Dementia Need Assistance
Regardless of whether Alzheimer’s or another type of dementia is involved, it is not common for seniors to reach a point where assistance is needed in managing their medical and financial affairs. There are certain steps that should be taken to make it easier for a loved one or trusted friend to help with those issues. The good news is, there are decisions that can be made now, and plans that can be put in place, that will allow someone you trust to make decisions for you if you are incapable of doing so on your own.
Understanding the Nature of Incapacity
Incapacity can be caused by either a physical or mental condition. The notion of incapacity, in a legal sense, refers to the ability to understand the nature of the consequences of legal proceedings. However, when you are dealing with estate planning issues, incapacity refers to a person’s ability to manage their own affairs and make decisions on their own. Therefore, incapacity could also be physical in nature, if you are no longer able to take care of your own affairs. Without an estate plan that deals with incapacity, you may end up being appointed a court-supervised conservator or guardian.
Using Advance Medical Directives for Incapacity Planning
An Advance Medical Directive is a legal document that allows you to delegate medical care and treatment related decisions to someone else, in the event you are not able to make those decisions for yourself. This estate planning tool allows you to select someone to manage your medical decisions for you. Advance Medical Directives are created so that they take effect even in cases of temporary incapacity.
Using a Financial Power of Attorney for Incapacity Planning
In addition to medical decisions, incapacity may also require assistance in handling financial matters as well. For this type of assistance, you should have a Financial Power of Attorney. This incapacity planning tool allows you to select someone you trust to manage your financial affairs.
A Power of Attorney Provides Authority to Act
A power of attorney is a legal document that simply conveys to someone you have chosen the power to manage your affairs, as you see fit. There are two common types of powers of attorney, one for finances and one for medical care. The power of attorney for finances is an inexpensive and reliable way to allow someone to manage your finances, should you ever become incapacitated. A durable power of attorney for health care, very similar to a power of attorney for finances, is another common estate planning tool used to help in making necessary health care decisions.
Living Wills Express Your Last Wishes Regarding Healthcare
A living will is a unique incapacity planning tool the purpose of which is to memorialize your wish to die without the use of extraordinary life support measures, in the event you become terminally ill. Your attending physician must certify in writing that you have an incurable injury, illness or disease and that your death is likely to occur in a short period of time before a living will can become effective. The physician must also certify that the use of life-prolonging procedures would only serve to lengthen the dying process.
The Terms of Your Living Will Need to be Specific
Contrary to what some people believe, a living will that includes vague language is not as effective as one that is more specific. Instead, your instructions should be as detailed as possible so that there will be no confusion. Unclear language leads to confusion and ultimately conflicting interpretations. A common example is when people say “no heroic measures,” they many intend that to mean no artificial nutrition and hydration. Yet, their physicians may not define heroic measures in the same way.
Mental Incapacity Can Cause a Living Will to Go Into Effect
There are a number of medical conditions, such as Alzheimer’s disease, psychosis, and dementia, which are recognized as resulting in diminished mental capacity. Age and senility are also common culprits, making individuals less able to make responsible decisions for themselves. On the other hand, determinations of incapacity are typically not based solely on a particular diagnosis because you should not presume that a certain medical condition will result in decreased mental capacity.
Download our FREE estate planning worksheet today! If you have questions regarding estate planning, trust contests, or any other trust administration issues, please contact the Schomer Law Group either online or by calling us in Los Angeles at (310) 337-7696, and in Orange County at (562) 346-3209.
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