Are You Prepared For Incapacity?

What would happen if you were in an accident, or had a stroke, or for another reason you suddenly became incapacitated or comatose, and were unable to make decisions for yourself? It is difficult to think about, but if this happens, some people want to be kept alive at all costs; while others would prefer to end all measures for resuscitation. However, less than a third of the population has completed Incapacity Planning documents, so for nearly 70% of Americans, family members have to make this important decision on their behalf. This often leads to wishes not being met, and more stress and grief for loved ones.

Why don’t people plan for incapacity? Reasons often range from a natural tendency to procrastinate, the preconception that it is a costly and complex process; and sometimes even the superstitious feeling that if you don’t ask for it, it won’t occur. Another common belief is that if we become unable to make decisions for ourselves, our family will decide what is best for us. All of these reasons can lead to difficult and emotionally charged situations if you or a loved one becomes incapacitated, which could easily be avoided with proper Incapacity Planning.

To begin the Incapacity Planning process, seniors should sit down with their family members to openly discuss their needs and the roles of loved ones in assuring those needs are met. Important topics of discussion for families should include transitioning to long-term care, caregiver roles, financial considerations, and incapacity wishes. Because of the difficulty of such topics, many families don’t have the conversation until it is too late. For more details on how to broach this conversation with a loved one, please read our blog post on the topic.

Once this important conversation occurs, and important decisions are discussed, it is important to work with a qualified elder law attorney (preferably a Certified Elder Law Attorney) to ensure that the Incapacity Planning documents listed below are in place. Doing so is the best way to ensure that your wishes are met should you become unable to make important decisions for yourself.

  • Advance Medical Directive. An Advance Medical Directive communicates your desires to your physicians and family members regarding all forms of medical treatment, and may be used to instruct your physician to withhold or implement specific life-prolonging procedures if at any time you are diagnosed as having a terminal condition and your physicians have concluded that there is no chance of recovery. Without this document, families could have serious disagreements, or someone who doesn’t share the individual’s values may be making the decisions.  Our firm includes within this document a proprietary Long-Term Care Directive, which discusses numerous issues with regard to long-term care should you ever find yourself in need of long-term care at home, or in assisted living, or in a nursing home.
  • Financial Power of Attorney. When you give someone Financial Power of Attorney, you are giving that person the right to access all or portions of your finances. The document typically goes into effect immediately after it is signed, but it intended to be used by your Agent only when needed. This person would also be in charge of your finances if you become incapacitated. Failing to procure this document can result in a costly legal battle for your family in which a court will select a guardian. In addition, having a Financial Power of Attorney avoids the “nightmare of living probate” — the time consuming, expensive, and publicly embarrassing process whereby someone has to go to court to have you declared mentally or physically incompetent and then one or more persons need to be appointed to serve as your legal guardian and/or conservator, which process is subject to ongoing court supervision.
  • Revocable Living Trust: A Revocable Living Trust (RLT) generally provides for the creator of the trust (and, if applicable, the creator’s spouse) to have full use of the trust income and principal for life. A major benefit of an RLT is avoiding the costly and public probate process. A RLT also offers protection from incapacity by providing uninterrupted management of your assets by your trustee and sparing you and your family the potential publicity and expense of a court-appointed guardianship.

To ensure your wishes are met, it is important to start your planning while your mind is still sharp and your judgment is sound, so you are prepared in advance if a crisis occurs. If you have not done Incapacity Planning, Estate Planning, or Long-Term Care Planning, or if you have a loved one who is nearing the need for long-term care or already receiving long-term care, please contact Farr Law Firm, P.C. as soon as possible at our Virginia Elder Law Fairfax office at 703-691-1888 or at our Virginia Elder Law Fredericksburg office at 540-479-1435 to schedule your appointment for an introductory consultation.

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About Evan H Farr, CELA, CAP

Evan H. Farr is a 4-time Best-Selling author in the field of Elder Law and Estate Planning. In addition to being one of approximately 500 Certified Elder Law Attorneys in the Country, Evan is one of approximately 100 members of the Council of Advanced Practitioners of the National Academy of Elder Law Attorneys and is a Charter Member of the Academy of Special Needs Planners.

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