Planning for incapacity involves understanding how incapacity might occur and a commitment to having a current plan.
Often considered crucial only for end of life planning or for diminished capacity, dementia, or Alzheimer’s Disease, planning is most important if you become incapacitated due to an accident, injury, disease, or other medical condition. As with all modern planning, the plan must be flexible enough so that if implemented tomorrow, it will be effective for many years. A common mistake is assuming that the plan will not be implemented for years to come.
The key for all planning is give adequate thought to how you and your family will react in a variety of situations.
A discussion with your spouse and loved ones about how you want to be cared for is better than any document you can sign for assuring dignified treatment consistent with your values and intentions, but the document is what expresses those values and intentions.
Your health care power of attorney (HCPOA) should name at least a primary person, usually your spouse, and one or more secondary people who are aware of your personal opinions about how and when you want health care and medical procedures delivered to you. My preference is that the document be open ended and give the broadest possible authority to the agent you name. The Arizona statutory form may be sufficient for some people and can be viewed and downloaded by clicking on this link, Arizona standard form, which will take you to the Arizona Attorney General’s website.
In addition to the HCPOA, should decide what are your end of life instructions and incorporate them into a living will. The statutory form can also be downloaded at the Attorney General’s website, but it is somewhat less useful and more confusing because of the many options allowed. I recommend that you discuss your end of life intentions with your loved ones to be sure everyone likely to be involved knows how you feel about life and dying. I use a very simple form that plainly and unambiguously declares your end of life intentions.
In addition to these important decisions, you should consider who you want to make decisions for you if you are unable to make them for yourself because of a mental defect which might be dementia, Alzheimer’s, alcoholism, or other form of diminished capacity. It will be no surprise that I believe it is more important who you select to make the decision and the authority given them than trying to make specific declarations for someone to follow. The greatest flexibility translates to the best possible decision making, but your values and intentions must be known to the person you name. Although you might accomplish that within the document, it is best if you have discussions extending over a period of time to make your values and intentions clearly known.
After assuring that all your health and medical needs are addressed, you must consider who will act for you to pay your bills and make your financial decisions. Often, those acts will be performed by your co-trustee if you have a spouse or by an adult child who is already named as a co-trustee, but if you don’t have a co-trustee, you need a good mechanism for determining when a successor trustee under a trust or an agent under a general durable power of attorney will be able to act. If the persons named by you to act are absolutely trusted, the appointment may be immediately effective. If you want the appointment to be effective only if you are incapacitated, then the document must provide that the power “springs” into being only if you are incapacitated and you must provide a method for determining when that event occurs. A common mistake is naming another person, usually a son or daughter, as a co-owner of your accounts so they can write checks in an emergency. Despite the convenience, that is often a mistake because of the potential for problems I will explain next time.
If you would like a more in depth discussion of your planning needs, please call me.
Mark Bregman