Far too many people assume that incapacity is something that happens to “the other person.” In reality, it is quite widespread among elders, and longevity statistics tell an eye-opening tale.
According to the Social Security Administration, a man that is turning 67 today has a life expectancy of 85 years, and it is 87 years for a woman. This means that if you are around long enough to collect your full Social Security benefit, it is likely that you will live into your mid-80s and perhaps beyond.
It is definitely hard to wrap your head around life as an octogenarian, but people in this age group often become unable to handle their own affairs. There are other causes of incapacity among elders, but Alzheimer’s is at the top of the list. It strikes about four out of every 10 individuals that are 85 years of age and older.
If you do nothing to prepare for this eventuality in advance, the court could be petitioned to appoint a guardian to act for you. You would become a ward of the state if the court agrees that you are no longer capable of making sound decisions on your own.
This is a necessary safeguard, but there are drawbacks that can go along with a guardianship proceeding. One of them is the time consumption. The need for a representative may be immediate, but this process can take some time to run its course.
This can be exacerbated by disagreements among family members with regard to the person that should act as the guardian. At the end of the process, the representative that is chosen may not be the individual that you would have selected yourself, and this is another possible negative.
This is typically done through the execution of the appropriate incapacity planning documents. For financial matters, you could execute a Durable Power of Attorney for Property. After you do this, the agent would be legally empowered to manage your affairs in the event of your incapacitation.
If you have a Revocable Living Trust, you would act as the trustee throughout your life. To account for latter life incapacity, you can name a disability trustee to succeed you if these unfortunate circumstances arise.
You could add a Health Care Proxy or Durable Power of Attorney for Health Care to name a medical decision maker. It should be noted that the “durable” designation keeps the document valid in the event of your incapacity.
A springing durable power of attorney is another option. This device would only go into effect if you become incapacitated.
No, there are a couple of other documents that would be included in a well-constructed incapacity plan. Medical professionals are not allowed to release health care information to anyone other than the patient unless a HIPAA release form has been signed. You should execute one of these documents to give your health care agent access to your medical records.
The other incapacity planning document that should be added is a living will. You use this type of will to state your preferences with regard to the use of artificial life-support methods.
We Are Here to Help!
If you take the right steps in advance, you can be fully prepared for the eventualities of aging and go forward with peace of mind. An attorney from our firm can help you create a custom crafted estate plan that includes an incapacity planning component.
You can schedule an appointment in the Essex Junction, Vermont area if you give us a call at 802-879-7133. Our Albany, New York office can be reached at 518-389-6020, and there is a contact form on this website that you can use if you would like to send us a message.
