Monday
Nov102014

Planning for Incapacity: Advance Directives

 

Suppose, due to illness or injury, you are unable to make decisions about your medical care, finances, or legal affairs. Who makes those decisions for you? You may be thinking, “I’m married. My spouse would handle that,” or, “my children could decide for me.” Unfortunately, without making clear designations, those closest to you may not have legal authority to carry out your wishes. Every adult should therefore have a set of written “advance directives.” Without them, a guardianship proceeding must be initiated, and a judge will decide who makes decisions for you. Guardianships are very costly, stressful for your loved ones, and often humiliating for you.

There are four basic advance directives we recommend to all of our clients. Each of these documents may be customized to meet your particular circumstances, and we often draft custom language to meet client-specific preferences.

Designation of Healthcare Surrogate

State law specifies who is authorized to make medical decisions for an incapacitated person (usually a spouse, then adult children, then parents, then siblings). But suppose any of those individuals are not available when needed? Or suppose the person designated by statute is not who you would want making decisions for you? After all, even close family members and spouses can hold very different opinions about medical care and end-of-life decisions. A written designation ensures that you choose who is in charge of your healthcare decisions.

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. While most people do not wish that extraordinary measures be taken to keep them alive under such circumstances, a living will can also be used to direct that affirmative measures be taken to prolong your life.

Durable Power of Attorney (DPOA)

Unlike with healthcare decision-making, state law grants no authority to your spouse or family to access your bank account, investments, safe-deposit box, or other financial assets. Without a DPOA, a guardianship proceeding must be initiated in court and a judge will then determine who manages your finances. DPOAs are also critical documents when engaging in asset-protection and Medicaid planning for an incapacitated person.

General HIPAA Release

This authorizes medical providers to share your medical information with those whom you designate.

While few of us like to think about the possibility of illness or infirmity, it is far better to plan ahead than to face incapacity without having these documents in place.