Most people in the United States do not have estate plans in place, and the overall lack of preparedness is a head scratcher. We will devote a future blog post to the results of a recent survey on the subject, but suffice to say that most people between 35 and 55 are unprepared.
This is the confusing part, because a very significant percentage of people in this age group have dependent children. It is irresponsible to go through life without an estate plan when you have others depending on you for everything.
A very low percentage of people that are under 35 have estate plans in place. You may say that this is no big deal, because they really don’t need to account for assets that they simply do not have at that young age. This may be true, but there is another consideration.
Advance Directives for Health Care
A properly constructed estate plan will address end-of-life issues, because one thing leads to another. If you do not prepare for certain eventualities in advance, difficulties situations can be that much worse.
People of all ages can into serious accidents, and devastating illnesses can sometimes enter the picture. Incapacity planning is also important when you consider the looming threat of cognitive impairment. About a third of senior citizens suffer from Alzheimer’s disease, and this is not the only cause of dementia.
Advance directives for health care are legally binding documents that should be executed to account for possible incapacity. A living will is one of these advance directives. You use a living will to state your wishes regarding the use of life-sustaining measures in the event of your incapacity.
It is possible to drill down to address each different type of life support procedure. A living will can also include your organ and tissue donation and comfort care medication choices.
Another advance health care directive is a health care proxy or durable power of attorney for health care. With this document, you name someone to act on your behalf as a medical decision maker if you ever become unable to make your own choices.
Health Insurance Portability and Accountability Act
In 1996, the United States Congress enacted the Health Insurance Portability and Accountability Act. One of the provisions made it illegal for doctors to share medical information with anyone other than the patient. The idea was to protect their privacy, but some of the consequences are less than ideal.
This preventative measure applies to everyone, even family members. As a response, when you are developing your incapacity plan, you should include a HIPAA release to give your health care agent the ability to communicate freely with your doctors. It should be noted that you can include anyone else that you choose.
Implications for Young Adults
When your child celebrates their 18th birthday, you will immediately recognize that they have reached adulthood in the eyes of the law. You know that there are certain rights and responsibilities that go along with this status, but you may never think about health care matters.
As soon as that day comes, health care professionals would not be able to communicate any information about your child’s condition to you because of HIPAA restrictions. For example, let’s say that you have an 18-year-old daughter who is away at college. If she is seriously injured in an accident, the doctors would not be able to tell you anything about her condition.
For this reason, incapacity planning is a must for young adults. In a real sense, every aspect of estate planning should be looked upon as a family affair. If you act responsibly, you can include your children, and they will subsequently understand the importance when they get older.
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Mr. Nirenstein is licensed to practice before the courts of the State of Connecticut and the United States District Court. He is a member of the Connecticut and Hartford County Bar Associations, and the Estate and Probate, Elder Law, Business Law and Real Estate Sections of the Connecticut Bar Association.
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