January 30, 2014

Incapacity Planning and Protection

Nash&Bean-Curt-colorBy Curt Ford
Nash Nash Bean & Ford

Most people prefer not to think about the possibility that they, or someone they love, could become incapacitated. Unfortunately, the possibility does exist, and the odds of becoming incapacitated increase as we age; however, incapacity can strike at any time and at any age. Aside from the emotional impact that incapacity has, it also raises some serious legal concerns: who will make decisions regarding medical treatment, who will have the legal authority to manage finances, even who will handle day-to-day personal decisions?

Many states allow you to execute a Power of Attorney (POA) for healthcare. This document gives you the ability to appoint someone to act as your agent for the purpose of making healthcare decisions on your behalf should you become incapacitated. In the case of a POA for Healthcare your physician will make the determination that you are incapacitated. If you do not have a POA in place, your physician will still be the person who decides you are incapacitated; however, in that case, your doctor will have turn to the person legally able to make decisions on your behalf following state law to make those decisions – not necessarily the person you would have chosen.

For someone to be granted legal authority to manage your finances and/or make personal decisions for you also requires a determination of incapacity. In that case, however, a physician cannot make the decision alone. This authority can only be granted through court guardianship proceedings. To be appointed guardian, the appropriate court must be petitioned and all interested persons notified of the proceedings. Ultimately, a judge will determine if the individual who is the subject of the petition is incapacitated. Typically, this is accomplished by reviewing a report submitted by a physician at the very least. Sometimes the court will order a hearing on the matter, in which case the judge will also hear testimony on the matter.

To make sure that your wishes will be followed if you become incapacitated – or if you are concerned that a loved one is incapacitated – consult with an experienced estate planning attorney to determine the correct legal documents or action you need to take in order to protect yourself or your loved one.

Nash Nash Bean & Ford are members of the American Academy of Estate Planning Attorneys and the National Academy of Elder Law Attorneys. To receive a copy of our most recent newsletter “Your Estate Matters” or for a free consultation on Estate or Long Term Care Planning, call 800-644-5345, email info@nashbeanford.com or visit our website at www.nashbeanford.com, where you may also link to our blog and Facebook page.

The firm devotes its practice primarily in the areas of estate, business and tax planning and related areas of the law, as well as elder law and trust administration and probate. We offer guidance and advice to our clients in every area of estate planning.

This column is designed for general information purposes only, and is not intended, nor should be construed or relied upon, as legal advice. Please consult your attorney if specific legal information is desired.

Filed Under: Family