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Planning for Incapacity

No one ever plans to become disabled. Although everyone realizes that life will end someday, few of us consider the possibility that we will spend a significant portion of our lives unable to fully care for ourselves. Very often, life gets in the way and bad things happen to ordinary people. Disability doesn't just happen to the elderly or those who pursue risky and dangerous hobbies. Motor vehicle accidents, work-related injuries, and otherwise common illnesses render many individuals disabled or 'incapacitated' every year.
Incapacity planning must be a part of every comprehensive estate plan. Proper planning will allow you to legally designate individuals who can make decisions for your care and empower them to manage your property if you are unable to do so for yourself. As a part of estate planning, there will be sophisticated legal documents involved, but dedicated and experienced legal counsel will help you understand your options and prepare a plan that is tailored to your needs.

The primary planning documents to provide control of your assets and your self are the Durable Power of Attorney (for access and control of assets), the Healthcare Power of Attorney (for making medical care decisions) and the Advance Directive (also known as a "Living Will") to provide instructions on what medical care you want if you are in a terminal condition or persistent vegetative state).


Durable Power of Attorney

Who will make decisions for you if you are unable to make them for yourself? Who will have the power to sign documents on your behalf, or make sure your bills get paid?
Without a durable power of attorney, someone who is mentally incapacitated must be taken to guardianship or conservatorship court to have a decision maker named for them by a judge. A carefully written durable power of attorney will allow you to name someone you trust to make decisions for you if you become disabled to the point of no longer being able to make those decisions yourself.

Healthcare Power of Attorney

A healthcare power of attorney allows your trusted friend or family member to make medical treatment decisions for you if you are unable to communicate your wishes to doctors. Without one, you must have a guardian or 'conservator' of your person appointed by the court before decisions can be made on your behalf.
A healthcare power of attorney not only saves precious decision making time, but it also makes sure that the individual you trust the most has the power to make these most important decisions for you if you are unable to make the decisions on your own.

Advance Directives ("Living Will")

A living will or advance directive to physicians directly informs your doctors what medical measures you want taken if you are in a terminal condition. The living will usually includes instructions that you do not want extraordinary medical measures taken, especially those that would cause you pain or discomfort, if those measures would only prolong the dying process. This document backs up your health care power of attorney. Anyone can deliver this document to your doctors if your agent under your health care power of attorney is unavailable to make health care decisions for you.

Under the law in many states, you retain the power to change your instructions by oral or written communication with your doctor at any time. Your choice will override any contrary instructions in your living will. You will want to sign a new living will as soon as possible to make sure that your Healthcare Agent can thereafter follow your instructions if  your doctors find that you have a "terminal condition" or are in a coma or a persistent vegetative state.

HIPAA Privacy Release Form

HIPAA, the "Health Insurance Portability and Accountability Act of 1996", has required medical providers to adopt rules to protect "individually identifiable health information". The effective date of the "Privacy Rule" under HIPAA was April 14, 2003. As a result, the rules for communications between medical provides and your family has drastically changed. Today, you need to give explicit instructions to your medical providers before they will release any medical information to other people or organizations. This is a good thing in most circumstances, but can be a burden if you become seriously ill or are hospitalized. 

If you would like some person other than yourself to have access to your medical records and information, and allow health care providers to release such information to that person, you must authorize the release of the information in writing.  Since a Durable Power of Attorney for Health Care is only effective after you have lost your capacity to make or communicate decisions, the Power of Attorney does not authorize release of medical information to the person named while you remain competent.  If you want some person other than yourself to have access to that information now, while you remain competent, you need to complete and sign a HIPAA Privacy Authorization Form, regardless of whether or not you also have a Durable Power of Attorney for Health Care in place.