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Incapacity & Disability Planning
As medical improvements increase our lifespan, the possibility of incapacity has also increased. Dementia, Alzheimer’s, and other diseases make it so that many individuals lose their capacity to manage their financial and medical affairs before they pass away. Other individuals are victims of accidents and temporarily are unable to take care of themselves.
The purpose of incapacity planning is to allow a loved one to take care of you after you cannot take care of yourself any longer.
Correct Estate Planning Incorporates Incapacity Planning
Correct estate planning will take these situations into consideration and provide incapacity planning. This planning includes documents such as:
- General Durable (i.e. Financial) Power of Attorney: This document grants to the person that you trust and appoint the authority to make financial decisions on your behalf.
- Medical Power of Attorney: This document grants to the person that you trust and appoint the authority to make financial decisions on your behalf.
- Living Will: This document addresses “end of life” situations where there is no hope for recovery and you are completely reliant upon artificial means to prolong and sustain your life. You have the power to choose to either prolong your life or terminate life-prolonging measures.
- HIPAA Waiver: Federal privacy laws limit healthcare providers’ ability to disclose your medical records and information to individuals other than yourself. This documents lists the individuals that you want to have access to your medical information.
What Happens Without Incapacity Planning?
Without proper incapacity planning, your loved ones will be forced to petition a judge for the authority to act on your behalf. This process can take days or weeks. There is also the possibility for family members to fight in court to decide who should make these decisions, while will delay the court even longer. In contrast, incapacity planning allows your trusted loved one to step in immediately after there has been a determination of capacity by medical professionals.
What is incapacity planning?
Incapacity planning means that you have the needed documents to continue to take care of yourself and your family if you ever lose the ability to make financial and medical decisions for yourself without passing away.
These documents include a Medical Power of Attorney, a General Durable Power of Attorney, a Living Will, and a HIPAA Waiver.
What happens if I do not have Incapacity Planning documents?
If you do not have Powers of Attorney and you become incapacitated, then someone who wants to be make decisions for you will have to apply to a court to be named your guardian or conservator. This process may take days or weeks, and multiple people may apply to be named guardian or conservator. This will make the process last longer and cost more.
Without a HIPAA Waiver, your medical providers will be under no obligation to provide your medical records or information about you to your loved ones. In fact, your medical providers may have the obligation to not provide any medical records or information.
Without a Living Will, then no decision may be made without a court order regarding end-of-life decisions, such as whether to “pull the plug” if there is not hope for your recovery.
What is a Financial Power of Attorney?
A Financial Power of Attorney is an informal name for a General Durable Power of Attorney. This document grants authority to someone that you choose to make financial decisions for you if you are ever disabled. Your Agent immediately gains this authority once you are determined to be incapacitated.
What is a Medical Power of Attorney?
A Medical Power of Attorney is a document that grants authority to someone that you choose to make medical decisions for you if you are ever disabled. Your Medical Agent immediately gains this authority once you are determined to be incapacitated.
What is a Living Will?
A Living will is a document that governs “end-of-life” scenarios, such as when you are completely dependent upon artificial means to sustain life and there is no chance for recovery. A Living Will states, for your doctors to follow, whether you want these artificial means to be terminated.
What is a HIPAA Waiver?
A HIPAA Waiver is a document that states to your medical providers the names of individuals that you want to grant access to your medical records. This document allows your Medical Power of Attorney, family members, or whomever you desire to know your medical diagnosis and treatments.
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Learn from speaker Brandon Rains, JD, an estate planning attorney, how to include the "why" in your estate plan. Learning Objectives: Understand estate planning strategies for incapacity and death Learn how to empower your loved ones and enrich their lives Create mechanisms and strategies for purposeful givingFind out more »