Many families deal with loved ones who have unexpected events in life that lead to incapacity. Whether it is a fall, heart attack or some other medical emergency, you should be prepared. Therefore, in this weeks’ column I will discuss planning for incapacity and explain the alternatives.
What does the term “incapacitated” mean?
An adult is incapacitated if , because of a physical or mental condition, the person is substantially unable to provide food, clothing, or shelter for himself or herself, to care for his or her financial affairs. Merely advanced age or hospitalization does not automatically mean a person is incapacitated.
How can I provide in advance for the management of my financial affairs should I become incapacitated?
As you grow older and the possibility of becoming incapacitated increases, it is wise to consider choosing a trusted friend or family member who will have the legal authority to manage your financial affairs without incurring the expense of a guardianship. This is done by executing a Durable Power of Attorney. A Durable Power of Attorney is a legal document in which a person (called a “principal”) appoints another person (called an “attorney-in-fact”) to manage the principal’s financial affairs. A Power of Attorney will automatically terminate upon the principal’s incapacity under Texas Law unless it is durable, that is, unless it contains language to the effect that “This power of attorney is not affected by the subsequent disability or incapacity of the principal.”
Who will make medical decisions for me should I become incapacitated?
By executing a Power of Attorney for Health Care, you can appoint one or more persons whose judgment you trust to make your medical decisions should you be unable to do so yourself. You can give your agent complete authority to make medical decisions, or you can limit his or her authority. Without a Power of Attorney for Health Care, an adult surrogate may not be able to consent to medical treatment on your behalf if you become incapacitated. The adult surrogate, in the following order of priority, is as follows: (1) your spouse, (2) an adult child, (3) your parents, (4) an individual identified to act on your behalf before incapacity, (5) or your nearest living relative.
What is a living will?
A living will is a common name for a document entitled “Directive to Physicians.” A Directive to Physicians allows you to direct that life sustaining procedures, such as use of a respirator, be withheld or withdrawn if two doctors certify in writing that you have an incurable condition and that death is imminent.
What is the difference between an Power of Attorney for Health Care and a Directive to Physicians?
A Directive to Physicians has very limited application; it only applies to one medical treatment decision, the decision to withhold or withdraw life support when death is imminent. A Power of Attorney for Health Care covers all medical treatment decisions.
Pursuing for your incapacity can be a difficult process, emotionally and legally. It is important to give your family peace of mind that they know who has authority and what actions to take ahead of time. An attorney experienced in estate planning can assist you in determining what option(s) is/are appropriate for your particular situation. There are too many details to address in this article, but if you have further questions or are planning for your future, you should consult an attorney.