Our elder law attorneys always stress the importance of comprehensive planning. There is no doubt about the fact that some of the matters that must be addressed are not particularly pleasant to consider.
At the same time, if you stick your head in the sand and hope for the best, you and your family may wind up paying a considerable price later on. This is a dynamic that definitely applies to the subject of incapacity.
Aging and Alzheimer’s Disease
It is important to understand the facts when it comes to your life expectancy and the eventualities that you may face if and when you join the ranks of the “oldest old.” This is the term that is used within the geriatric community to describe people who are at least 85 years of age.
When you look at the statistics, you can see that there is a very good chance that you will experience life as an octogenarian. According to the Social Security Administration, if you are fortunate enough to celebrate your 67th birthday, it is likely that you will live into your mid-80s and perhaps beyond. In fact, census data indicates that the oldest segment of the population is growing faster than any other age group.
The Alzheimer’s Association is a good source of information for anyone who is interested in learning some facts about this disease. They have found that about 40 percent of the oldest old have developed Alzheimer’s disease. The figure for all people 65 years of age and older is right around 13 percent. When you sum it all up, you see that it is likely that you will live into your 80s if you are reasonably healthy when you are in your 60s. If you do, Alzheimer’s disease will be a looming threat.
Guardianship and Conservatorship
What would happen if you were to become unable to make sound decisions due to Alzheimer’s induced dementia or for some other underlying reason? The answer to this question is largely up to you.
If you do nothing to prepare for the possibility of incapacity, and interested parties suspect that you are incapable of handling your own affairs, the court can be petitioned to appoint a guardian and/or a conservator. In Kansas where we practice law, a guardian would be an individual who is empowered to make personal decisions on your behalf, and a conservator would be a financial representative. It should be noted that the same person could potentially handle both roles.
There are some drawbacks to take into consideration when you are thinking about this scenario. First and foremost, the representatives who are chosen may not be people who you would have selected yourself if you were in a position to do so. Secondly, members of your family could have disagreements during the process, and this is another major negative. Lastly, the proceedings can be time-consuming, and the need for representation can be pressing.
Durable Powers of Attorney
To prepare for this possible scenario in advance, our elder law attorneys can help you execute the appropriate incapacity planning documents. Most people are aware of the fact that a power of attorney is a legal device that is used to name someone else to act on your behalf in a legally binding manner. A standard power of attorney would no longer be in effect if the grantor of the device was to become incapacitated.
However, durable powers of attorney do remain in effect, so you could execute durable powers of attorney to name representatives to act for you in the event of your incapacitation. We are using the plural here because you could execute a durable financial power of attorney along with a durable power of attorney for health care.
Speaking of health care, there is a law in place called the Health Insurance Portability and Accountability Act (HIPAA) that prevents medical professionals from sharing records with anyone other than the patient. Your incapacity plan should include a HIPAA release form to allow your health care representative to have access to your medical information.