As estate planning and elder law attorneys, we focus on the eventualities of aging. Unfortunately, they are not always the most pleasant things in the world to consider, but they are facts of life, nonetheless. If you take the right steps, you can make a difficult situation as manageable as possible.
With this in mind, we will look at the importance of incapacity planning in this blog post.
Incapacity Among Elders
We have all heard of Alzheimer’s disease, but many people are surprised when they hear about its ubiquitous nature. This disease strikes one out of every 10 seniors, and that statistic is enough to get your attention. However, the number goes up to 40% when you are talking about people who are 85 years of age and older.
For the record, it is also one of the leading killers that we have here the United States, so dementia is not the only threat that it presents. According to the Social Security Administration, if you live to the age of 67, your life expectancy is at least 85 years depending on your gender. When you digest these facts, you can see that Alzheimer’s disease is a looming threat.
Of course, there are other causes of dementia, and there are other underlying reasons why people become incapacitated in one way or another. As a result, it is a very real possibility for all of us, and it is important to take steps in advance to prepare for it.
Adult Guardianship and Conservatorship
A guardian is someone who would make personal decisions on behalf of a ward, and a conservator is a financial representative. If you do nothing to prepare for incapacity, and you become unable to handle your affairs at some point in time, the court could be petitioned to appoint a guardian and/or a conservator.
This is a necessary remedy and there is nothing inherently wrong with it, but there are some potential drawbacks to consider. For one, it can be time-consuming, and there can be disagreements among family members with regard to the right way to proceed.
There is also the very real possibility that the representatives who are chosen are not individuals whom you would have selected if you were capable of making the choice yourself.
Proper Incapacity Planning
Now that we have set the stage, we can get to the point. It is totally possible to take control of your future and name representatives of your own choosing to handle your financial and medical decision-making.
This is done through the execution of legally binding documents called durable powers of attorney. The “durable” designation is important, because this type of power of attorney would remain in effect if you were to become incapacitated. There is also a springing durable power of attorney that would only go into effect if it was determined that you are no longer capable of handling your own affairs.
An incapacity plan will include a durable power of attorney for property, and a durable power of attorney for health care. Plus, you can add a living will. With this document, you state your wishes with regard to the utilization of life-sustaining measures if you ever become incapacitated.
We should also point out the fact that you could establish a living trust with incapacity planning in mind. You could convey your assets into the trust, and you would act as the trustee while you are alive and well. If you ever suffer from incapacity, a disability trustee who you name when you establish the trust agreement would be empowered to manage assets in the trust.
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