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Why you should plan for the possibility of incapacitation

On Behalf of | Oct 18, 2023 | Uncategorized

Most people go their whole lives without experiencing significant incapacitation. However, it is always a possibility.  Accidents or unexpected health issues can arise at any time.  Age and the health conditions that often accompany aging can also strip someone of their testamentary capacity and leave them unable to manage their affairs.

Planning for incapacity is often a key component of modern estate plans, even though many people overlook this need. Why should all adults prepare for the possibility of future incapacitation?

Without a plan, an individual’s interests remain at risk

In the event of a medical emergency that leaves someone incapacitated, it is helpful to have named a person with the legal authority to choose what care is received or who one wishes to manage their finances. A spouse can potentially act in the other spouse’s best interest during an emergency, but they are not always able to do so. Additionally, there are plenty of adults who have no spouse. Once someone reaches 18 years of age, parents will not be able to access their medical records for children unless expressly given that authority.

if an adult patient lacks capacity, another adult can consent to treatment in the following order of priority:

  1. Spouse.
  2. An adult child, with the waiver and consent of all other adult children.
  3. The majority of the patient’s children.
  4. Parents.
  5. An individual clearly identified to act on a patient’s behalf before you became incapacitated, your nearest living relative, or a member of the clergy.

Those who do have a spouse should consider the possibility that their spouse might be with them during an event that leaves both injured and a second agent should be named for making health care decisions or for handling financial matters.  Even unmarried persons might be with the person they name as their agent so it is always advisable to select a second and even third choice for alternate agents on a medical power of attorney or statutory power of attorney.

Someone who has an incapacity plan in place can take the pressure off of their spouse or loved ones by naming someone they trust to handle finances or medical matters in their durable powers of attorney or declaration of guardian documents.   They can even provide instructions about the type of treatment they would like to receive in an advance medical directive.

Those who worry about having the right support during a future medical emergency can likely benefit from incapacity planning. To this end, adding additional documents other than just a will to one’s estate plan can minimize how vulnerable someone will be in the event of an emergency.