Q. I am in my 40’s and run marathons. I am in better health now than I have been in my entire life. My family eats only organic foods, and we are hardly ever sick. My grandparents are still alive, and they are in their 90’s, and my husband has a grandmother who is 102! If heredity has anything to do with it, we have long lives ahead. In addition, my husband and I are safe drivers, and typically take the metro or bike to work. We don’t participate in many dangerous activities, unless you consider skiing to be dangerous. Should people like us even plan for incapacity, when the likelihood is nothing will happen to us?
A. Kudos on your healthy lifestyle! It’s true that exercise and healthy eating have countless benefits and can help stave off disease. But what happens if something unexpected happens to you or your spouse?
For example, what if you got into a bike accident that leaves you unconscious, or your doctors need a last-minute decision about something while you are sedated for surgery. When you can’t speak for yourself, you want to make sure your medical and financial wishes are honored. And that means spelling out your specific preferences on paper and choosing someone you trust to handle decisions for you.
Take, for example, a much publicized case from ten years ago. Terri Schiavo of Florida did not anticipate slipping into a coma and then having her husband and parents fight over her medical care and ultimate wishes for the next 15 years while she lay brain-dead and on a feeding tube. She did not anticipate a legal back-and-forth between her husband and her parents, that ended up in the Supreme Court, with even the President and the Pope involved. I am sure she would have never wanted that for her family, during such a difficult time for everyone. Keep in mind that she first landed in the hospital when she was only 26, proving you never know when something unexpected can happen and you’re never too young to detail your life wishes.
Less than a third of the population has completed Incapacity Planning documents. This often leads to wishes not being met, court involvement and supervision, 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, people of all ages 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 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.
Important Incapacity Planning Documents
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 is intended to be used by your Agent only when needed. This person would be in charge of your finances if you become incapacitated. Having a Financial Power of Attorney in place 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 conservator, which process is subject to ongoing probate 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. An 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 now, so you are prepared in case a crisis occurs. If you have not done Incapacity Planning or Estate 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 to make an appointment for a consultation:
Fairfax Elder Law: 703-691-1888
Fredericksburg Elder Law: 540-479-1435
Rockville Elder Law: 301-519-8041
DC Elder Law: 202-587-2797
About Evan H Farr, CELA, CAP
