Planning for Incapacity

Nobody likes to imagine a future in which they are not capable of managing their own needs or making their own decisions. But many of us have had to help parents or other family members who were no longer able to care for themselves. Seeing a loved one in decline is never easy, but it can be downright frustrating when you don’t have the legal authority to communicate with their medical providers, help with their banking and bills, or prevent them from making disastrous financial decisions. If you’ve ever had to care for an aging family member whose mental capacity was declining, you know that you don’t want to put your own spouse or children in the same position. That’s why planning for incapacity is so important.

What is Incapacity Planning?

Incapacity planning is an important part of estate planning. Making an estate plan isn’t just to protect your family after your death; it’s a way to make sure your wishes are honored while you are still alive, even if you become incapable of expressing them.

Incapacity planning involves two primary components: financial and medical. Let’s discuss the documents required to plan for incapacity and to make sure you maintain as control as possible over the decisions that affect your life and well-being.

Durable Financial Power of Attorney

A financial power of attorney is a document that allows someone you choose (your agent or attorney in fact) to act on your behalf with regard to financial matters. You can make the power as limited as the authority to conduct one transaction, or as broad as the ability to transact any and all financial business that you yourself could. A broad power is preferable in planning for incapacity.

“Durable” means that the authority you grant your agent survives your incapacity. Often, a durable financial power of attorney is also “springing,” meaning that your agent cannot act on your behalf unless and until you become incapacitated.

If you do not have a durable financial power of attorney, and you become unable to handle your financial affairs, your family may need to go to court to get guardianship and conservatorship over you. This can be a stressful and costly process, and can cause conflict in your family if there is disagreement over who should manage your affairs.

Durable Healthcare Power of Attorney and Other Advance Directives

Just as you will want to appoint someone to make financial decisions on your behalf, you also need to name someone you trust to make your medical decisions if you can’t make them for yourself. A durable healthcare power of attorney (also sometimes referred to as a “healthcare proxy”) is a document that allows you to do just that. Most people choose a spouse or adult child, but you can choose any adult you trust to serve as your medical decision-maker (agent).

A durable healthcare power of attorney is one of several documents that fall under the umbrella of “advance directives” or “advance healthcare directives.” Advance directives are an essential part of your incapacity plan. Taken together, they help your loved ones and care providers honor your wishes for your medical care. Advance directives include:

• Health Care Directive, which is a document used in Minnesota that combines a durable healthcare power of attorney and a living will. A durable healthcare power of attorney allows you to appoint someone to make medical decisions on your behalf; a living will communicates your wishes for end-of-life care to your appointed agent so that they can make decisions for you that align with those wishes.

• Do Not Resuscitate (DNR) Orders, which allow you to request that if your heart stops or you stop breathing, medical providers do nothing to resuscitate you or keep you alive.

• Organ and tissue donation preferences can be included in your advance directives.

While creating a durable healthcare power of attorney is an essential part of incapacity planning, it’s often not enough. Often, when someone is gravely ill and can’t communicate, their family members urge medical staff to “do everything possible” to save them. Unfortunately, sometimes those lifesaving measures are painful and do nothing to give the patient meaningful quality of life; they simply prolong suffering and delay death. To avoid that outcome, and spare your loved ones the potential guilt of letting you go, it’s important to have other documents that outline your wishes.

What Happens if I Don’t Make an Incapacity Plan?

If you put off incapacity planning until it’s too late, you simply shift the burden onto the people you love. As mentioned above, they may need to go to court to get the authority to make decisions on your behalf, which piles additional stress and expense onto a situation that is already stressful and costly. Furthermore, they won’t have the benefit of your guidance about your wishes, which means your financial affairs and medical care may not be handled the way you would want.

You may think of people who are incapacitated as those who are elderly and frail, with memory or cognitive issues. If so, you may think that you have plenty of time to plan for your own incapacity. Unfortunately, a sudden illness or injury—say, a stroke or a serious car accident—can cause sudden incapacity at any age. Putting off planning can be a dangerous gamble.

To learn more about protecting yourself and your family, schedule a consultation with an incapacity planning lawyer at Mundahl Law by calling 763-575-7930. The process of planning may seem intimidating, but the outcome is always greater peace of mind.