Incapacity Planning

• • Is incapacity common among elders in the United States?

• • It is safe to say that incapacity is relatively common among the oldest old. This is a term that is used in the geriatric community to describe people that are 85 years of age and older.

     

    Alzheimer’s disease strikes more than 30 percent of folks in this age group, and this is a leading cause of cognitive impairment, but it is not the only one. According to the Alzheimer’s Association, most seniors in nursing homes pass away with some form of dementia.

     

    In addition to cognitive difficulties, there are those that become unable to manage their finances and their personal affairs because of serious physical ailments.

     

    If you are thinking that you probably will not live until you are among the ranks of the oldest old, you should digest an eye-opening longevity statistic. The Social Security Administration tells us that the life expectancy for someone that is 67 is at least 85 depending on gender.

• • Does the state step in to name a representative when someone becomes incapacitated?

• • The state can be petitioned to appoint a guardian to act on behalf of an incapacitated adult. This is a necessary safeguard, but a guardianship proceeding is less than ideal.   First, there are procedural hurdles, and state intervention is disconcerting in a general sense. There is also the matter of potential disagreements among family members regarding the person that is chosen to act as the guardian.   In the end, the individual that is appointed may not be the person that the incapacitated adult would have chosen when they were fully capable of making sound decisions.

• • Can you name someone to manage your financial affairs in advance?

• • Yes, if you take the right proactive steps, you can empower people to act on your behalf and prevent a guardianship.

    If you have a living trust, you would act as the trustee while you are alive and competent. There are a number of different reasons why you may want to use a living trust instead of a simple will as your asset transfer vehicle, and we will briefly touch upon a couple of them.

     

    When a living trust is established, the trustee that you name to succeed you would be able to distribute assets to the beneficiaries after your passing outside of probate. This is a costly and time-consuming public legal process, and the records are available to anyone that is interested.

     

    Another major benefit is the ability to dictate the distribution terms. If you do not want the beneficiaries to receive lump sum inheritances all at once, you can instruct the trustee to provide incremental distributions over time.

     

    Getting back to the subject at hand, another advantage is the ability to prepare for possible incapacity. You can name a disability trustee to assume the role if you ever become unable to manage the trust on your own.

     

    When it comes to property that is not held by a trust, you can name someone to act on your behalf in a durable power of attorney for property. The “durable” designation will allow the trust to remain active in the event of your incapacity, so it is important.

     

    There is a hybrid option called a springing durable power of attorney. This device would only go into effect if you become incapacitated, and this can sound ideal, but there is a potential drawback.

     

    The agent that is named in the document would have to prove that you are in fact incapacitated, and this can complicate the process.

• • How do you account for health care decision-making?

• • This is done in a similar manner with an additional dimension. You can state your life support preferences in a living will, and you can add your comfort, care, medication, and organ and tissue donation choices. To account for decision-making that is not related to life-support, you can execute a durable power of attorney for health care. Doctors would not be able to share your medical information with the agent unless a HIPAA release is signed, so this is another necessary document.

Schedule a Consultation Today!

We are here to help if you are ready to work with an attorney to put a plan in place. Our firm has estate planning offices in Glastonbury and Westport, Connecticut, so you can set up a consultation appointment at the location that is best for you.

You can call us at 860-548-1000 to schedule appointment at either location, and you can use our contact form if you would rather send us a message.