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Planning for Incapacity: Who Will Make Your End of Life Decisions?

Incapacity Planning

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Incapacity planning is something that everyone should take the time to include in his or her estate plan.  If you want to be able to have a choice in your future medical decisions, you need to incorporate incapacity planning into your overall estate plan.

Take a look at some of the information below to learn more about the importance of this planning.  If you have additional questions, or if you’d like to start your planning, meet with an estate planning attorney.

  • You should take the time to create a living will.  This estate planning document will allow you to spell out your medical wishes ahead of time.  Many individuals use this document as a way to outline their wishes regarding the use of life support.
  • It’s also important to include a healthcare proxy in your estate plan.  This estate planning document is used to appoint a healthcare agent who will be responsible for helping to make important decisions if you ever become incapacitated.

Your agent will help to make sure that your medical wishes are followed while ensuring that you’re receiving proper care.  He or she will also be responsible for making important decisions regarding your health.  If you want to have control over who will help to make these important decisions, you need to create a healthcare proxy.

  • Include a HIPAA release so that your health care agent (under your health care power of attorney) has full access to your medical records and medical professionals such as doctors.

Now is the time to create an incapacity plan.  Without a plan in place, you will have no control over your medical future.  If you have additional questions about incapacity planning or if you’d like to start your plan, consult with a qualified estate planning attorney.

Davidov Law Group is a member of the American Academy of Estate Planning Attorneys.

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Many people think incapacity planning is not for them, assuming only those who are approaching retirement age can benefit. The reality is, accidents can occur at any time and leave us mentally incapacitated. A car accident, for example, can leave victims in a coma while medical conditions such as Alzheimer’s disease can slowly take away a person’s mental capacity. By establishing a detailed incapacity plan, you will be able to select a representative to act on your behalf in the event that you are unable to manage your affairs.

Creating a Power of Attorney

A durable power of attorney is a legal document which designates a specific person to act on your behalf if you become incapacitated. This person, known as the “attorney-in-fact” or “agent”, will be responsible for making financial decisions, such as managing your debts and investments, as well as overseeing your medical treatments. While you are mentally competent, you have the power to dictate how you wish your agent to act if you are ever incapacitated.

A “durable” power of attorney refers to the fact that the legal document will not expire if you are mentally unable to manage your affairs. In contrast, a “nondurable” power of attorney is no longer valid should you (the principle) become mentally incapacitated. Despite its name, your attorney-in-fact does not have to be a legal professional, in fact agents rarely are. They must, however, be someone you can trust and will not abuse or neglect their responsibilities.

One person may not always be the best choice to handle both the medical and financial decisions. Separate documents are often drafted for the medical and financial powers of attorney and you are able to distribute responsibilities between different people as you see fit. In the event that you choose a single person to act on your behalf, it is a good idea to designate an alternative candidate. This way, if something should happen to the attorney-in-fact, you will still have a representative to carry out your wishes. By making these choices and preparing early, the agents you choose to act on your behalf will have time to understand and prepare for their responsibilities.

Avoiding Conservatorships

In the event of an accident, if no valid attorney-in-fact has been established, the state may designate a conservator to handle your affairs. This can leave a family member to administer your estate, leaving them with a responsibility that they will likely be unprepared for. It can also lead to a dispute in cases where there is no clear indication of what the incapacitated party would have wanted.

Conservatorships also have additional legal necessities such as court hearings. While these processes are in place in order to help safeguard the mismanagement of an estate, it can be a costly process and burden your loved ones with unnecessary legal fees. The best way to avoid a conservatorship is to have a well drafted incapacitation plan in place.

Secure a Compassionate Estate Planning Attorney

If you have questions regarding the estate planning process or want to create an incapacity plan, our Nassau County estate planning attorney at the Davidov Law Group can help. Our firm can provide legal guidance to help ensure that your incapacity plan meets all legal requirements and that your wishes will be carried out as you intend.

Call (516)-928-6594 to request a personal consultation and talk to a lawyer about planning for the future.

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Sometimes people who don’t have an extraordinary amount of wealth assume they don’t need to discuss estate planning with an attorney. They are aware of the fact that the estate tax is only applicable to large estates, and they think that only those who are subject to the estate tax should plan ahead.

There are a number of reasons why this is patently untrue, but the one that we would like to take a look at here is the need to plan ahead for possible incapacity.

You undoubtedly understand the fact that some people do become incapacitated. But you may be willing to gamble because you think that it is statistically unlikely that this will happen to you. If this is your stance you should know a few things about Alzheimer’s disease.

This disease strikes at an alarming rate. According to statistics provided by the Alzheimer’s Association about 13% of people who attain senior citizen status (i.e. those who are at least 65) have contracted Alzheimer’s disease.

This percentage may seem relatively small, but if you take it a step further you find that 45% of people who are at least 85 are Alzheimer’s sufferers.

People are living longer and longer lives, and it is quite possible that you will indeed live into your mid-eighties and perhaps beyond.

For the above reasons incapacity planning is a must. This will typically include the creation of a health care proxy and a durable power of attorney empowering decision-makers of your own choosing to handle your affairs in the event of your incapacitation.

If you are currently unprepared for the possibility of incapacity you would do well to execute these important documents with the assistance of a licensed estate planning attorney sooner rather than later.

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The process of estate planning should ideally be a broad and comprehensive one. Recording your wishes regarding the distribution of your assets is only part of what you should take into consideration. You should also address the postmortem aspect.

On the other side of the coin, you should address the period of time that would logically precede your death. This can include the execution of a power of attorney to appoint someone to act on your behalf in the event of your incapacitation.

Power of Attorney Kew Gardens NY

Different Types Of Powers Of Attorney

There are different types of powers of attorney. These legal devices are used in all different areas of the law. One type of power of attorney is a general power of attorney.

With a general power of attorney you are giving the agent or attorney-in-fact that you choose the power to act in a sweeping, comprehensive manner. There are no particular limitations. The agent could do anything that you can do for yourself.

Another type of power of attorney is a limited power of attorney. With this type of power of attorney you give someone the ability to act on your behalf under limited circumstances.

For example, let’s say that you own a real estate investment company. You could empower your assistant to sign certain types of business documents on your behalf. His or her ability to act on your behalf would be limited by the precise terms of the document.

Durable Power Of Attorney

Whether it is limited or general, a standard power of attorney that is not designated as durable would no longer be in effect if the grantor was to become incapacitated. If you want to appoint someone to act on your behalf in the event of your incapacity, you should execute a durable power of attorney.

If you don’t execute a durable power of attorney naming your own hand-picked decision-maker, a guardian could be appointed by the state to act on your behalf if you become incapacitated.

A guardianship proceeding can be lengthy, and the need for immediate decision-making may exist. In addition, the guardian that is chosen by the court may not be someone that you would have chosen. And, members of your family may not agree with regard to the optimal course of action. They could clash in court, delaying things even further as hard feelings start to develop.

You can prevent all of these negative consequences if you take the time to execute a durable power of attorney naming your own hand-picked decision-maker. Hopefully you will never become incapacitated, but if you do find it difficult to handle your own affairs late in your life you will have an effective plan in place.

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Getting a General Durable Power of Attorney is one of the most important things that you can do as part of your overall estate plan. You should consider the possibility that you might be incapacitated and unable to look after your own interests in the latter years of your life. If you do not plan ahead, then someone else will have to go to court and ask for guardianship over you to protect your interests.

If you think that having a relative asking a court for guardianship is not that big of deal, a recent case illustrates the problem with that approach. Sometimes, your relatives might not agree about all aspects of the guardianship and who should be the guardian. Usually, that argument is left in court, which can be bad enough. In the case of the Fox family, the disagreement resulted in a 63 year old high school counselor punching his 74 year old uncle after a court hearing.

Fortunately, not every family feud over guardianship will end up in criminal charges. However, any family disagreement over the issue is unnecessary and avoidable. All that you need to do is have an attorney prepare a General Durable Power of Attorney so that everyone knows who you want to look after your interests when you are no longer able to do so.

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As part of your estate plan, your New York City estate planning attorney will draw up a wide range of documents for you. As part of the process, you will need to designate people to act on your behalf. You might need to appoint an executor, a trustee, a general power of attorney, a healthcare prox and more. You do not need to designate the same person to act in every role.

Speak with your attorney about what the people designated for each role actually do so that you can designate the most appropriate person. For example, the executor of your will has a short-term assignment. Once directives in the will are carried out, the executor’s role is over. However, a trustee may need continue administering the trust for years. Thus, you might want to consider a potential trustee’s ability to continue to act well into the future, which might not be as big of a concern for an executor.

Different considerations go into deciding who to appoint to different roles, such as appointing a power of attorney or a healthcare proxy. An estate planning attorney will go over every role with you and has the experience to know what the most important factors are that you should consider. Make sure you ask your attorney about every role.

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A will is an important planning document that every adult needs. However, it doesn’t prepare you for all of your needs. Many people assume that a will can be used during incapacity, “I named my son as my executor.” Unfortunately, this is won’t work. Take a look at the following information, to learn more. If you have any questions, or if you’d like to create a will or other planning device, contact an estate planning attorney.

Your Will is Only Effective after Your Death

When you choose to create a will, you’re planning for the future. Your will is only utilized and only becomes effective after your death. While you create a will during your lifetime, it can’t be used during your lifetime to make decisions. If you become incapacitated, you will need to have other documents in place.

You Need a Power of Attorney and Health Care Proxy during Your Lifetime

You may choose to create a power of attorney and health care proxy. A power of attorney allows you to make sure that your and financial affairs are in order during your incapacity, while a health care proxy allows you to make sure that your medical affairs are in order. Your agents will be able to make decisions on your behalf.

Consider a Living Will

Additionally, you may also choose to create a living will. This gives you the opportunity to spell out your wishes regarding the use end of life treatments and procedures. Many people choose to make decisions about the use of life support.

Consider a Revocable Living Trust

Another option is to consider creating a revocable living trust. You can give an individual, a disability trustee, the authority to mange your trust’s assets during incapacity.

Where to Get More Information and Help Putting a Disability Plan in Place

It’s important to have the right planning documents in place, so that your needs are met. If you have a will, know that it doesn’t protect you during incapacity. If you have any questions about how to properly utilize incapacity planning documents, consult with a qualified estate planning attorney.

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The term “elder abuse” is a term that is commonly used to describe a various actions that causes harm to an elderly person. According to the Administration on Aging, elder abused is defined as any type of negligence or action by a caregiver or family member that causes harm or serious risk to an elderly individual.

There are several different types of elderly abuse, these include

  • Neglect – This type of abuse would include the refusal to provide the basic necessities to an elderly person by those that are responsible for that person; some examples would include health care, shelter, food, clothing, medicine, etc.
  • Sexual Abuse – An elderly person is being sexually abused if they are forced into any type of sexual contact and they have not or cannot give their consent.
  • Physical Abuse – Someone that is being physically harmed or threatened with physical harm or pain is being physically abused. In addition, depriving someone of basic needs is also considered to be physical abuse.
  • Emotional Abuse – If a caregiver inflicts mental and emotional pain on someone with verbal assaults or not talking to the person at all, this would be considered emotional or physiological abuse.
  • Financial Exploitation – This would include illegally taking, misusing or hiding funds, assets or property of an elderly person.
  • Abandoning – This type of abuse occurs when someone that is responsible for the care of an elderly person deserts or abandons them. For example, if an elderly person needs 24-hour care, and the person that was responsible for that care left them alone to run to the market, this would be considered abandonment and neglect.

Elder abuse is a serious issue, and cases of abuse are on the rise. The increase in elder abuse could be due to the fact that people are living longer, and as a result there are more elderly people that require caregivers today. Whatever the cause, elder abuse is a major problem in today’s society that needs to be addressed.

If you suspect that your loved one may be suffering from elder abuse, it is essential that you contact the proper authorities at once, and remove the person from the care of the person that is abusing them.

Davidov Law Group is a member of the American Academy of Estate Planning Attorneys.

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Elder Law and Medicaid Planning

Medicaid needs arise when you least expect them. Americans are living longer than before. At the turn of the 20th century, life expectancy was about 47 years. In the 21st Century, life expectancy has doubled. As a result, we face more challenges and transitions in our lives than those who came before us.

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Wills, Trust and Estate Planning

We know you want to pass your wealth to whom you want, when you want, the way you want, at the time of your death. If done correctly, a Estate Plan can help minimize estate taxes for a married couple and allow a trusted person to take over your care and finances during incapacity.

PROTECT your family.
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SAVE estate taxes. Give your money to your family.
PRESERVE money for children or charitable causes.

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