As elder law and estate planning attorneys, we help people prepare for the eventualities of aging. There are some realities that we all face that are not especially pleasant, but it is best to meet them head on, so you and your family are fully prepared. Unfortunately, incapacity is more common than you may think.Once you reach the age of 67, it becomes likely that you will live until you are at least 85 according to the Social Security Administration. The Alzheimer’s Association tells us that 40% of the oldest old have contracted the disease.Clearly, people with Alzheimer’s induced dementia are not going to be able to make sound decisions at some point in time. When you mix in the fact that this is not the only cause of incapacity, you can see that it is a very real possibility for anyone who lives a normal lifespan.
Under these circumstances, interested parties would petition the court to appoint a guardian to manage your personal and financial affairs. This can be disconcerting, because the person who is chosen may not be the individual who you would have selected yourself.Another drawback is the potential for disagreements among your loved ones with regard to the person who should act as your guardian. Thirdly, the proceedings can sometimes be expensive, complicated and time-consuming.
Yes, this is what incapacity planning is all about. If you are using a living trust as the centerpiece of your estate plan, you can name a disability trustee to step in to manage the trust if it ever becomes necessary.To account for property that has not been conveyed into a trust, you can execute a durable power of attorney. The agent who you name in the document would handle your financial affairs in the event of your incapacity. You could add another durable power of attorney to empower a health care decision maker.The “durable” designation is significant, because a power of attorney that is not durable would no longer be in effect if the trustor was to become incapacitated. There is a variation called a springing durable power of attorney that would only go into effect if you do become unable to manage your own affairs.With regard to the health care side of the equation, you should add another document called a HIPAA release form. This will give doctors the ability to share your medical records with your health care agent.
You can record your life-support preferences in a legally binding manner through the execution of a living will. When this document is in place, health care professionals would be compelled to follow your instructions, and your family members would not be faced with this excruciating decision.
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As you can see, an incapacity planning component should certainly be embedded within your broader estate plan. If you are currently unprepared, or if you have an existing plan that has not been reviewed in years, today is the day to take action.
We would be more than glad to gain an understanding of your objectives and help you put a custom crafted plan in place that provides for your loved ones in the ideal manner. You can schedule a consultation right now if you give us a call at 913-262-2000.
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