Planning for Incapacity

Any one of us, young or old, can find ourselves temporarily or permanently unable to take care of our own affairs.  You may need help making decisions about your health care, your finances, or other practical matters.  Many people begin the estate planning process by thinking about their will, but documents that help others care for you when you are sick or injured can be even more important to your quality of life at a difficult time.

Power of Attorney

The Power of Attorney document is one of the most important documents we draft.  Every individual over 18 needs to consider who will handle their financial and practical affairs if they are too sick or injured to handle those matters themselves.  Such questions might include:

• Who can access my bank account and pay my bills?
• Who can cancel expenses (cell phone, car insurance) that are draining my resources, and that I am not using because of my injury?
• Who will file my taxes, resolve claims against my real property, or apply for the best insurance for my given condition?
• Who will call my 401k or investment plans to ensure I have access to funds to pay for my medical needs?
• Who will manage my online accounts and email?  Who will receive my US mail and might they need to forward it to a different address to help care for me?

In the State of Florida, the law requires a great deal of specificity when delegating power to another individual.  We have recently found that banks and financial institutions seem to be increasing their requirements for specificity in these documents as well.  For instance, saying that you want your spouse to "handle everything that you can handle" or even saying they can "manage any and all of your banking transactions" or "make withdrawals from your accounts" is not enough.  If they are trying to purchase a house on your behalf, and your power of attorney does not specifically give them the power to make a wire transfer, the bank may refuse to allow them to do this task.

For this reason, we use a very detailed and thorough power of attorney document, and one that specifically considers and anticipates the potential need for asset protection and advanced estate planning to protect your assets in the event of a catastrophic accident in which you might require long term care for a longer period than expected.  The value of a comprehensive power of attorney isn't truly known until your family needs to use it, and it is probably the most valuable document we create for our clients.

Advance Health Care Directives

It's hard to imagine a scenario in which we won't be able to make our own health care decisions, but they happen.  You may be undergoing a routine healthcare procedure, and the doctors need informed consent to make a choice based on what they find while you are under anesthesia. Or you may have had a serious accident, and your family and doctors may be looking for information about the kind of care you want to receive.  

Health Care Surrogate

The Designation of a Health Care Surrogate gives medical professionals a clear picture of WHO you want to make decisions if you aren't available.  It can also give your family clear instructions about how you want to be taken care of.  Your surrogate may want to know:

• How do you feel about pain medication?  Do you prefer to be comfortable, even if it means being sleepy or groggy, or do you prefer to minimize pain medication to maintain clarity, even if it gives less relief?
• How do you feel about visitors?  Do you want all of your coworkers, students, or distant friends coming up to your hospital room?  Or do you prefer that only close family members see you when you aren't feeling your best?
• Are you an organ donor?

Living Will

The Living Will has a deceptive name - it describes to your family and your medical professionals HOW you want to die, to the extent that such an event can be controlled.  The Living Will only applies if you have been diagnosed with an end stage condition, a terminal condition, or you are in a persistent vegetative state, AND two doctors agree you have no reasonable medical probability of recovery.  In that event, death appears imminent, and it looks like it will be long and protracted.  Having a living will is like taking an exit ramp from that long and protracted death.  You are relieving your medical professionals of legal liability from using every miracle of modern science to extend your life.

By writing down your wishes, you can relieve your family of guilt and ensure your medical professionals are following your instructions, even when you can no longer express them.