How to Prepare for IncapacityAs we age, it is inevitable that there will be signs of this process.  For some, this will mean experiencing less physical strength and stamina.  However, for others, getting older may result in a decline in mental functioning.  This could be due to an onset of dementia or the result of another medical condition.  In some cases, loss of mental acuity can occur because of an accident or unforeseen medical complication which has nothing to do with age.   While a loss of brain function can occur for different reasons, it is important in every case to do what you can to be ready for this possibility.  Knowing how to prepare for incapacity will protect your interest and, if necessary, help your loved ones make decisions on your behalf.

Patient Advocate Designation and Living Wills

A Patient Advocate Designation or “PAD” is a legal binding document which allows you to name another person to make decisions for you if you become incapacitated.  These choices can range from choosing your treating physicians to directing medical procedures and life-saving measures.  A Living Will, on the other hand, is a document which gives your medical providers specific instructions regarding your treatment.  This may include resuscitation directions, life support, and other major medical interventions. Unlike a PAD, the Living Will does not allow you to designate a medical advocate and it is not a legally binding document. However, when you have both a PAD and Living Will, you are taking necessary steps to have the right person named and give them and your provider’s instructions about how to proceed with your care.

Power of Attorney for Finances

A Power of Attorney (POA) for Finances is another legal document which permits you to name another person to step in on your behalf.  In this case, the designated individual will be able to handle your financial decisions.  Their decision-making authority can be for smaller things such as paying your bills as well as more substantial matters related to your business, banking, and investment interest. Having a POA will allow you to make sure your financial interests are protected in the event you are incapacitated.

Guardianship and Conservatorship

In some cases, a person’s mental capacity may be or is expected to decline to such a state that they will need more assistance than can be provided through a PAD or POA.  In this instance, a formal guardianship and conservatorship may be necessary.   A guardian is a person who is appointed by the probate court to be responsible for the individual’s personal needs and medical care.  A conservator is appointed to look out for an incapacitated person’s financial interest.  The same person can serve in these roles but it is not required.  Having a guardian and conservator severely limits the incapacitated individual’s ability to make decisions, but in some cases, it may be necessary to protect their interest and well-being.  If possible, it is best for the individual to identify the person or persons that they would prefer to serve in these roles before the designations.

Planning for incapacity will help ensure that your wishes concerning your care, financial interest, and property are in place.  Our office has experienced attorneys who are knowledgeable about preparing for incapacitation and can help you determine how to best plan for the future.  Please contact us if we may be of assistance.

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