Incapacity

Each of us wants to make it to the end of life with our physical and mental faculties intact.  Unfortunately, most of us will confront some form of incapacity whether its due to physical disability, dementia, the fragility of old age, or an accident.  If we are incapacitated, we want to choose the person who will make intimate care and financial decisions on our behalf.  However, if you fail to appoint someone to act on your behalf, should you ever lose your decision-making ability, it may be necessary for the court to appoint a guardian or conservator.

A guardian is appointed by the court to ensure your personal needs are met, such as food, clothing, shelter and medical care.  A conservator is appointed by the court to manage your financial affairs.  The court may appoint a relative as guardian or conservator, or it may appoint a professional, such as an attorney.  In either case, it might not be the person you would have chosen for this important responsibility.  

Accordingly, a complete estate plan should include the necessary documents to appoint an agent to make financial decisions and healthcare decisions in the event you are permanently or temporarily unable to make such decisions for yourself.  The particular documents required depend on your individual situation, but generally include powers of attorney and trust provisions.   You can appoint one person for matters of personal/medical care and a different person to handle financial matters.

In addition to appointing the person you want to make medical care decisions on your behalf, an advance healthcare directive provides written guidance regarding the type of medical treatments you want to receive.  And, just as importantly, the medical treatments you prefer to decline.   Advance directives also alleviate stress on family members.

If you are seriously ill and unable to make decisions, your loved ones will be anxious and worried.  Advance directives give those who are concerned about you assurance the situation is being handled consistent with your wishes.  Additionally, the person responsible for making decisions effecting your treatment and care will have your guidance to lessen her worry about whether she is making the right choices.

Remember, the person you appoint only makes decisions on your behalf if you are unable to make them for yourself.  Until such time, you continue to make all of your own decisions.

If you completed documents appointing medical and financial agents in the past, it is important to review the documents to ensure that they are consistent with current law.  Prior to 1990, many attorneys prepared general durable powers of attorney that allowed your agent to make both financial and medical decisions on your behalf.  However, many of these older documents fail to meet current statutory requirements.  As a result, the person you chose to make medical decisions on your behalf could be prevented from receiving medical information from your doctors or discussing your condition with them because they don’t have the proper legal authorization.