People often think of estate planning as being something that is all about financial matters. It is true that you have to facilitate postmortem asset transfers, but what about the period of time that will precede your passing?
An incapacity component should be embedded within every estate plan. This is usually discussed as it applies to the eventualities that await senior citizens. Many elders become unable to make sound decisions due to incapacity triggered by dementia or for some other underlying reason.
In addition to this facet, which is very important, there is another possibility to take into consideration…
People of all ages sometimes become unable to communicate their own decisions because they are seriously injured in accidents. Others become extremely ill very quickly, and if you questioned this before, the novel coronavirus should be enough to convince you.
To prepare for incapacity, regardless of when or why it strikes, you should execute certain legally binding documents. One of them is a living will.
With this type of will, you state your preferences regarding the utilization of mechanical respiration, resuscitation, artificial hydration, and artificial nutrition. You can also record your comfort care medication choices and decisions about tissue and organ donations.
A living will is an advance directive for health care, and another directive that should be part of the plan is a health care proxy or durable power of attorney for health care. With this legal device, you name an agent who would act as your medical representative in the event of your incapacity.
This decision-making authority would apply to matters that are not directly covered in your living will. The agent would not have the ability to make a choice that is contrary to anything that is contained within the living will.
This type of situation would be a nightmare for any of us. However, when you have these documents in place, you can go forward with peace of mind.
HIPAA Release Form
The Health Insurance Portability and Accountability Act (HIPAA) was enacted by Congress and signed into law in 1996. There are many different provisions within the measure, and one of them prevents doctors from providing medical information to anyone other than the patient
If you have a child who has reached the age of 18, you obviously recognize the fact that the young person is now an adult in the eyes of the law. Many of the implications will be readily apparent to you right away, but the matter of health care decision-making may never cross your mind.
As soon as that birthday is celebrated, HIPAA would protect that young adult’s privacy. Let’s say that you have an 18-year-old daughter, and she goes off to college in another state. She is rushed to the hospital after being involved in a car accident, and her roommate calls you to tell you about it.
You would naturally contact the hospital immediately, but doctors would not be able to tell you anything about her condition. They would fully understand your position, but their hands would be legally tied because of the HIPAA stipulations.
This makes incapacity planning for the parents of young adults an absolute must. Everyone should execute a HIPAA release along with a durable power of attorney for health care to give the agent the ability to speak freely with the doctors if it becomes necessary.
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If your family is impacted by the dynamic that we have described in this blog post, action is required. And of course, our doors are open if you would like to discuss any other matter with a licensed estate planning attorney.
We know that it can be a bit disconcerting to discuss personal matters with someone who you have just met. Our clients consistently give us feedback about how comfortable we made them feel, so please be assured that you are in good hands with us.
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