Disability Legal Planning for All Ages
A life-altering disability can strike at any time, regardless of your age. From a complicated pregnancy to a serious automobile accident to a cancer diagnosis, these situations can have a significant impact on your life and the lives of your loved ones. Because one-in-four working-age adults may become disabled before they retire, there is a chance you may become disabled. Prior legal planning is essential to reduce the legal hardships caused by a debilitating illness or injury. Here are a few tips to help you make proper disability legal plans.
Create Powers of Attorney
If you were disabled due to an injury or illness, who would you want to make your personal, health care, and financial decisions? Would you rather it be someone you know and trust, perhaps a family member or friend, or would you prefer someone appointed for you by a judge who likely knows nothing about you, your family and your circumstances? If you are like most people, you would choose the former alternative over the latter. Unfortunately, without proper advance legal planning, the latter is the default and more common result.
Since none of us knows when to expect the unexpected, you need to create a Power of Attorney for Health Care Decisions and a Durable Financial Power of Attorney. The word “durable” means the authority that you give the person appointed in your Power of Attorney, will continue in force should you become disabled. After all, that is when you would need them to act for you, right? This is an important point to remember.
Health Care Matters
Creating a Power of Attorney for Health Care decisions is truly a matter of life and death. Who better to advocate your health care needs than someone selected by you, who knows you better than the doctors and nurses treating you? As a result, you should share with your Agent the nature of treatments you would want (or not want) under a variety of scenarios.
A Living Will (also called a Directive to Physicians) is a document commonly completed with the Power of Attorney for Health Care decisions. Its purpose is to provide written evidence and guidance regarding your end-of-life medical care. Be as general or specific as you wish. While you are at it, do not forget to include a HIPAA authorization as part of your health care disability planning. Such an authorization is necessary under federal law to allow your health care providers to disclose otherwise confidential and protected information to your Agent.
Financial Matters
If the Durable Financial Power of Attorney is “general,” then your Agent may have very broad authority to act on your behalf. For example, the Agent may be able to sell your home, sign and file your tax returns and pay ongoing bills from your account. The Agent has a fiduciary duty to follow your financial and estate planning, and to act in accordance with your wishes.
A Durable Financial Power of Attorney goes into effect immediately upon being properly signed. Some people choose instead for their Power of Attorney to “spring” into effect upon their disability. A “springing” Power of Attorney can make it more difficult for your Agent to act on your behalf, because they would first have to prove to the financial entity that you were incapacitated in a way that prevented you from acting on your own. It is much wiser to appoint an Agent you trust to act according to your wishes regardless of your health.
Even with a Durable Financial Power of Attorney, their may be delay or obstacles to having financial entities recognize the Agent’s authority to act. Many people choose to place their assets into a Living Trust since many banks and other financial institutions are more comfortable dealing with a Trustee than an Agent under a Power of Attorney.
Find Us Online
With over 35 years of experience with Estate Planning and Elder Law, John McNair has helped thousands of families prepare in case of incapacity. For more information be sure to visit our web site where you will have access to our blog, events schedule and a complimentary newsletter subscription!
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