Planning for Incapacity: Vital Legal Documents Everyone Should Have

LEGALLY SPEAKING Planning for Incapacity: Vital Legal Documents Everyone Should Have

BY MICHAEL FELDMAN

Suppose tomorrow you were injured in an accident, became terribly ill and unable to make decisions about your medical care, finances, or legal affairs. Who would make those decisions for you? You may be thinking, “I’m married. My spouse could handle all of that.” Or, “If something happens to me my parents or significant other will step in.” Unfortunately, the sad reality is that if you don’t make clear designations in advance, those closest to you may not have legal authority to carry out your wishes.

That’s one reason why every adult (ie., someone over 18 years of age) should have a set of basic documents called “advance directives.” Without them, a guardianship proceeding must often be initiated, and a judge will decide who has legal authority to make decisions for you. Guardianships are very costly, time-consuming, and stressful for your loved ones. Worse, they can lead to inter-family disagreements, or bitter and expensive litigation over who will be appointed as your guardian (as in the 2005 Terry Schiavo case).

There are a number of advance directives that every adult should have in place: 1. Designation of Healthcare Surrogate (sometimes called a Healthcare Power of Attorney)

State law specifies who medical providers can look to if a patient cannot communicate their wishes (usually a spouse, then adult children, then parents, then siblings, etc.). But what if those “in line” to make decisions for you are not available when needed? Suppose, for example, both you and your spouse are in a car accident together and cannot make decisions for the other. Or, suppose your parents or children are away and unreachable in an emergency. And what if the person(s) designated by statute are not who you would want to make decisions for you? After all, even close family members and spouses can hold very different opinions about medical care and end-of-life decisions. These scenarios, while seemingly rare, occur all-to-frequently. 2. Living Will

A living will expresses your desires about end-of-life decisions should you be terminally ill, such as the use of feeding tubes and the issuance of a “do not-resuscitate” order. Of course, a living will can also be used to direct the affirmative measures you wish taken to prolong your life. 3. Durable Power of Attorney (DPOA)

DPOAs deal with legal and financial affairs. Unlike with medical decision-making, state law grants no authority to your spouse or family to access your bank account, investments, safe-deposit box, or any other financial asset, unless they have been added to the account or designated as an authorized user in advance. Without a DPOA, a guardianship proceeding must be initiated in court and a judge will then determine who manages your finances. 4. Other Advance Directives

A number of other types of advance directives may be appropriate in certain circumstances. This includes HIPAA Authorizations, Social Security designation of representative payee directives, and others. We routinely work with our clients to ensure they are equipped with the types of directives most appropriate for their needs.

Most all of these documents may also be customized to meet your wishes and specific circumstances. You should consult an estate planning, elder care, or special needs attorney to draft the proper language for each document. We may not like to think about these uncomfortable “what-ifs,” but it is far better to plan ahead than to face illness, injury, or infirmity without having these documents in place.

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l Wills & Trusts

2020