Houston Estate Planning and Elder Law Attorney Blog
It’s a hard thing to imagine: what would your life be like, if you were not able to take care of yourself? Not being able to manage your physical or financial needs, drive, leave your home without assistance, or do any of the things that you do now as a legally competent, abled-bodied person?
Being incapacitated means that someone has to be named to carry out your health care and manage your finances. Without a plan, courts usually get involved, and often people who don’t know the person needing help are the ones who make decisions for them. With a plan, as described in The Post-Searchlight’s recent article, “How to go about planning for incapacity,” you have the ability to tell what your wishes would be for health care and name someone to be in charge of your financial and legal affairs.
Incapacity can strike at any time. Advancing age can bring dementia and Alzheimer’s disease, and a serious illness or accident can happen suddenly. Therefore, it’s a real possibility that you or your spouse could become unable to handle your own medical or financial affairs.
If you become incapacitated without the proper plans and documentation in place, a relative or friend will have to petition the court to appoint a guardian for you. This is a public procedure that can be stressful, time consuming, and costly. In addition, without your directions, a guardian might not make the decisions you would have made.
Advance medical directives. Without any legal documents that state your wishes, healthcare providers are obligated to prolong your life using artificial means, if necessary, even if you really don’t want this. To avoid this happening to you, sign an advance medical directive. There are three types of advance medical directives: a living will, a durable power of attorney for health care (or health-care proxy) and a Do Not Resuscitate order (DNR). Each of these documents has its own purpose, benefits, and drawbacks, and may not be effective in some states. Employ an experienced estate planning attorney to prepare your medical directives to make certain that you have the ones you’ll need and that all documents are consistent.
Living will. This document lets you stipulate the types of medical care you want to receive, despite the fact that you will die as a result of the choice. Check with an estate planning attorney about how living wills are used in your state.
Durable power of attorney for health care. Also called a “health-care proxy,” this document lets you designate a representative to make medical decisions on your behalf.
Do Not Resuscitate order (DNR). This is a physician’s order that tells all other medical staff not to perform CPR, if you go into cardiac arrest. There are two types of DNRs: (i) a DNR that’s only effective while you are hospitalized; and (ii) and DNR that’s used while you’re outside the hospital.
Durable power of attorney (DPOA). This document lets you to name an individual to act on your behalf. There are two types of DPOA: (i) an immediate DPOA. This document is effective immediately; and (ii) a springing DPOA, which isn’t effective until you’ve become incapacitated. Both types end at your death. Note that a springing DPOA isn’t legal in some states, so check with an estate planning attorney.
There are two ways in which incapacity is determined. One is that a doctor decides whether or not you have capacity. This is usually done by including a provision in a durable power of attorney, were you name the physician who will make that determination. You can also state that your incapacity can be determined by the attending physician caring for you at the relevant time. The second is when the court is petitioned to determine incapacity, after a proceeding where medical and other testimony is heard and a judge makes the decision.
Speak with an estate planning attorney to have these documents created, so that your wishes are put down on paper and can be followed by loved ones.
Reference: The Post-Searchlight (December 13, 2019) “How to go about planning for incapacity”