The vast majority of elders never experience incapacity, right?
We certainly wish that we could say that this was true, but it is simply not the case. To gain a thorough grasp on the subject, you have to understand the widespread nature of Alzheimer’s disease.
The Alzheimer’s Association tells us that the disease strikes about 10% of all people that are 65 and older, and the figure rises to 40% for those even older, at least 85. It should be noted that the oldest segment of the population is growing faster than any other.
Alzheimer’s alone is enough to make you sit up and take notice, and it is not the only cause of dementia. Plus, there are other forms of incapacity outside of cognitive impairment.
Who handles your affairs if you become incapacitated?
If you do nothing in advance to prepare for this eventuality, interested parties could petition the state to appoint a guardian to act on your behalf. Under these circumstances, if the court determines that you have become incapable of making sound decisions on your own, a guardian would be empowered.
At that point, you would become a ward of the state.
Is there any way to choose your own decision makers in advance?
Yes, and this is what incapacity planning is all about for the most part. One of the great things about a revocable living trust as an alternative to a last will is the incapacity preparation component.
You can act as the trustee while you are alive and well, and you can account for possible incapacitation by naming a disability trustee. This individual or entity would be empowered to administer the trust if you ever become unable to do so on your own.
In addition to this course of action, you could execute documents called durable powers of attorney. Most people are aware of the fact that a power of attorney is used to name someone else to act on your behalf in a legally binding manner. A power of attorney that is durable remains intact if the grantor becomes incapacitated.
With a durable power of attorney for property, you can name someone to make financial decisions on your behalf. This would involve property that is not in the trust if you do in fact have a living trust and a disability trustee. You could add a durable power of attorney for health care to empower a medical decision maker.
A durable power of attorney for health care is an advance directive, and there is another one that should be part of any well-constructed estate plan. Doctors can sometimes keep terminal patients alive indefinitely through the utilization of artificial life sustaining methods. You can state your life-support preferences in a living will.
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We would be more than glad to help if you would like to discuss incapacity planning and other important elder law and estate planning matters with a licensed attorney. You can schedule a consultation appointment right now if you give us a call at (818) 937-2335.
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