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incapacity planning

Medical conditions such as Alzheimer’s Disease or other forms of Dementia and certain Mental Illnesses can lead to temporary or ongoing incapacity.  Deliberate planning should be done prior to incapacity to avoid the need for an expensive and burdensome Guardianship.

All adults are presumed to have the capacity to make legal, financial, and medical decisions for themselves.  Capacity refers to the ability to understand and appreciate the consequences of your actions and to make rational decisions.  By appointing agents under durable or medical powers of attorney or trustees for your revocable trust, to act on your behalf you can ensure that your wishes are followed, even if you are not able to speak or act for yourself.

Durable Financial Power of Attorney – This document appoints an Agent who can make legal and financial decisions on your behalf.  The Agent is required to act in your best interest and must make decisions in accordance with any financial plan you have chosen.  A “durable” financial POA enables your Agent to act, even if you become incapacitated.  An Elder Law attorney will ensure that your Durable POA has the authority to make gifts and take other actions that may be required for Medicaid or VA Planning.  You can change or revoke your POA at any time as long as you have capacity.

Living Trust – Many people choose to create a living trust to better manage their assets in the event of incapacity and to avoid the time and expense of a probate.  A Trustee is chosen to manage the financial assets in accordance with your wishes.  A living trust can and should be used in conjunction with a durable power of attorney.

Power of Attorney for Health Care – This document informs your medical team who they should look to for decisions about treatment options if you are not able to speak for yourself.  The physician will determine whether you are able to understand the risks and benefits of the situation on a case by case basis.  You should discuss your wishes for medical care with your Agent to ensure they understand what you do and do not want to happen.

Living Will / Directive to Physicians – This document should be used in conjunction with the POA for Health Care.  In a Living Will, you clarify your wishes for care in writing, so that your medical team and your family feel confident they are acting according to your desires.

HIPAA Release – Each medical facility has their own version of a HIPAA release form, allowing them to discuss your care with other medical providers and your family.  A General HIPAA Release form is often created so that there is consistency among medical providers and clarity about which family members can have access to protected health information.

Out of Hospital Do Not Resuscitate – This is a medical form used in Texas that is signed by your physician which informs first responders and care community staff that if your heart stops, you do NOT wish for them to perform CPR and rush you to the hospital.  Without this form, medical personnel must perform CPR, regardless of the frailty or condition of the individual.  Often the likelihood of surviving CPR is very low.  This form is completed after consulting with medical professionals. It is not completed by an attorney.

Estate Planning Considerations

A comprehensive consultation with an Elder Law Attorney will help you determine whether a trust-based or will-based estate plan is right for you.  Often a combination of the two is used.

Guardianship

Guardianship can often be avoided if the above documents are put into place.  Guardianship is a legal process whereby a judge determines whether someone lacks capacity to make financial and/or personal decisions.  If the person is adjudicated incapacitated, a Guardian is appointed to manage financial (Guardian of the Estate) and/or personal (Guardian of the Person) decisions.  One person can serve as both types of Guardian, or two people can be appointed.

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