Why everyone over 18 should plan for incapacity

When most people think of Estate Planning, they think of planning for their death.   False! An important part of Estate Planning is designating people who will care for you if you are alive but not able to make decisions for yourself. We get it, no one wants to think about the possibility that they will lack the capacity to pay their bills or make a healthcare decision. However, the cost of not preparing for this unlikely future is great.  Unfortunately, often when people realize they need one these documents to help a loved one, they don’t have it and it is too late to do.

Why does an 18 year old need to prepare for incapacity?

What most parents don’t realize is that when a child turns 18, they are legally an adult.  As a legal adult, a parent is no longer permitted to access their child’s medical information or make medical or financial decisions on their child’s behalf.  Without these documents, if your child has an emergency and ends up in the hospital, you are not permitted to speak to the doctor on their behalf.

What do I need and what do these documents do?

  • Durable Power of Attorney. A durable power of attorney appoints a person who will make financial decisions for you if you are not able to make them for yourself. It is effective as soon as you sign it and is only valid while you are alive.   The person acting as a durable power of attorney will not take on any liability but rather, sign agreements in your name as your durable power of attorney. This includes paying medical bills, credit card bills, or rent.   It is important to have a well written document because the person you designate will only have the powers you give them.  For example, if you give them the power to access a bank account but not open a bank account.
  • Designation of Health Care Surrogate. A health care surrogate appoints a person to make medical decisions for you if you are not able to make them for yourself. In fact, under the new law, a person can designate someone now, even though they are still competent. Otherwise, this document comes into effect when a person is determined by doctors to be incapacitated to provide informed consent for medical treatment and surgical procedures. It also may consist of a clause that directs the person you choose to comply with your living will.
  • Living Will. You can tell your health care surrogate your wishes in a living will. A living will states your end of life wishes and whether you would like to be kept alive by heroic measures.   It takes the burden off of the health care surrogate from having to make a life or death decision should you become mentally and physically incapacitated and unable to recover from a specific condition.
  • HIPPA This document allows people you select to have access to your medical information and speak to the doctors on your behalf. This can include doctor appointments, lab results, billing, and anything related to your medical treatment.
  • Declaration of Pre Need Guardian. If someone petitions the court requesting that you be declared incompetent, this document tells the court who you would like that guardian to be. This document could prevent an unknown person from being court appointed to handle your financial and medical decisions.

What happens if I don’t have these documents?

Should there come a time when for one reason or another, you lack the capacity to make a financial decision or healthcare decision, your loved ones will have to petition the court to be appointed as your guardian.  Guardianships require a great deal of time and money.  For one, they are court monitored and held to strict rules on what they can and cannot do.  Also, while a family member may be preferred, unless the person requesting to be appointed lives out of state, there are no requirements that your guardian be a family member or friend.

An Elder Law Attorney Can Help Prepare for Incapacity

Don’t wait until something happens to prepare these documents.  Likely, it will be too late and that risk may come with high financial and emotional costs. Preparing now will give you peace of mind that you have control over who will make decisions for you, if needed, without burdening family and friends.  To talk further about making these preparations, call an Elder Law Attorney today.


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