Everyone should consider making an incapacity plan. The Centers for Disease Control and Prevention data shows that one in four adults in the United States develops some type of disabling condition. In 13.9% of those cases, the disability impacts cognition.
If you develop a mental or physical condition and you become unable to express your preferences related to medical care, you need to have a plan in place. Otherwise, your loved ones could be left to make life-and-death decisions with no guidance, your assets may not be managed properly, and your decisions with regard to medical care won’t be respected.
Three tools should be part of your incapacity plan so you are prepared for unexpected illness or injury. Here’s what they are.
1. A living will
A living will is the first and arguably most important tool in your incapacity plan. That’s because you’ll use your living will to provide very specific instructions about the kinds of medical care you want to accept and the kinds of medical care that you want to refuse.
You can provide specific instructions in your living will about whether you want to be kept alive on a ventilator, given artificial nutrition or hydration, or have other extraordinary medical procedures attempted to save or prolong your life.
These decisions are some of the most important choices that you will make when you have a serious illness or injury. There are many considerations that go into making these choices, including your preferences for quantity vs. quality of life. It’s far better for you and your loved ones if you have a living will and have provided instructions in advance on these matters.
Otherwise, your loved ones could be left confused about your preferences. They might also disagree about what care to accept or refuse. They could even be left feeling guilty about the choices that they have to make on your behalf. You don’t want this to happen, nor do you want the wrong choices to be made about life-saving or life-extending care.
2. A durable power of attorney
In addition to a living will, you should also create a durable power of attorney. This allows you to designate who will manage your assets and financial affairs if you are unable to due to incapacity.
You will need to make sure that the power of attorney is durable because otherwise, it will not remain in effect in the event of incapacity. You’ll also need to think carefully about who you can trust to manage your assets for you. This person could be in charge for a long time if you have an incapacitating illness or injury that leaves you mentally unsound for months or years. They must be someone you can count on to follow your preferences and someone who knows how to effectively manage the property that you own.
If you do not create a durable power of attorney and name a person to act for you, the court may have to appoint someone. You don’t want this to happen, as this could create added stress for loved ones who need to initiate legal proceedings. It could also result in more conflict among family members and could lead to the wrong person being put in charge of managing your affairs.
3. A HIPPA authorization
Finally, you want to make sure that you are including a HIPAA authorization. The Health Insurance Portability and Accountability Act provides very strong privacy protections for patients. Under HIPAA, doctors and care providers can’t just release your private health information to others, including your loved ones.
You want the people who are in your life to be able to have this information in case of incapacity so they can make the choices that they need regarding your care. You should talk with your providers about completing a HIPAA authorization while you are of sound mind so that you can make clear who is to be given details about your medical situation.
These are just three of many potential tools that you can use when you are making an incapacity plan. You may also want to incorporate others as well, such as a living trust that would allow you to maintain control of your assets as the primary trustee but that would put a backup trustee in charge if something happens to you.
It’s important to make effective use of these tools and put an incapacity plan in place before you need it. You never know when you could become one of the millions of Americans who develop a disabling condition. You need your plan in place at that time in case you cannot speak for yourself any longer.
An experienced estate planning lawyer at the Edwards Law Firm can help you make an incapacity plan. Your attorney can guide you through every step of the process to ensure that you use the right tools and create an enforceable plan to protect your future. The Edwards Law Firm serves Jacksonville, St. Augustine, Fernandina Beach, Mandarin, and the surrounding areas of Northeast Florida. Call us today at 904.672.7600 to learn more about how we can help you.
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