Long Island Elder Law & Estate Planning

incapacity planningWhen you are planning your estate, you should see a complete picture. Yes, it is important to state your wishes with regard to the way you want your assets to be distributed after you are gone.

At the same time, you should also seriously consider the events that may befall you toward the end of your life.

Aging, Alzheimer’s & Incapacity

We are not trying to reduce unsettling circumstances to mere statistics, but it is important to understand some cold hard facts so you can prepare yourself accordingly.

The average life expectancy for a woman that is turning 67 today is 87 years, and for a man, it is 85 years. According to the Alzheimer’s Association, over 30 percent of people that are 85 years of age and older have contracted the disease.

About 10 percent of all senior citizens are Alzheimer’s sufferers, so it can have an impact on younger seniors as well. As we all know, Alzheimer’s causes dementia, and people with this condition become unable to handle their own affairs eventually.

This is not the only condition that can cause cognitive impairment, so this is a real threat for everyone. And of course, some people become unable to communicate because of physical health problems.

Adult Guardianship

If you are ever in this position without taking any steps in advance to address the possibility, a guardianship hearing could be convened to designate someone to represent you. This is a positive safeguard on the one hand, but there are potential problems with a guardianship.

Most importantly, the decision would be out of your hands, and most people would want to make the choice for themselves. There is also the possibility of disagreements among your loved ones with regard to the person who should assume the role.

This would be a difficult time for everyone in the family, so the acrimony can make a challenging situation that much worse.

Incapacity Planning

It is possible to take the matter into your own hands in advance through the execution of the appropriate incapacity planning documents.

If you have a living trust, you would act as the trustee while you are alive and well. To account for incapacity, you could name a disability trustee to administer the trust if it ever becomes necessary.

A durable power of attorney for property can be utilized to empower an agent to manage property that is not in a trust.

You can add a durable power of attorney for health care or health care proxy to give someone the ability to act as your representative for medical decision-making. The same person can be the agent for both purposes, but this is not a requirement.

Another medical related incapacity planning document that should be added is a living will. This type of will is used to state your preferences with regard to the utilization of life-sustaining measures like feeding tubes, artificial hydration, resuscitation, and mechanical ventilation.

The Health Insurance Portability and Accountability Act (HIPAA) protects patient privacy. A provision contained within it prevents doctors from communicating medical information to anyone other than the patient.

To give your agent the ability to speak freely with your doctors, your incapacity plan should include a HIPAA release form.

We should point out the fact that these protections apply to adults of all ages, even someone that just celebrated their 18th birthday. As a result, if you have a child that is 18 or older, their doctors would not be able to discuss their medical condition with you unless they sign a HIPAA release.

Schedule a Consultation Right Now!

As you can see, it is important to include an incapacity component within your broader estate plan. If you are ready to put a plan in place, or if your existing plan need some updates, our doors are open.

We can gain understanding of your unique situation and help you devise a plan that is ideal for you and your family. You can schedule a consultation at our Smithtown, New York estate planning office if you call us at 631-265-0599.

There is also a contact form on this site you can use to send us a message, and if you reach out electronically, you will receive a swift response.

 

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About Mark S. Eghrari, Estate Planning Attorney

Mark S. Eghrari is an attorney in private practice in Smithtown, New York. He has been in practice since 1988. Mark S. Eghrari provides extensive estate and tax planning services to individuals and businesses. Mr. Eghrari’s primary focus is helping clients avoid probate, minimize or eliminate Federal and State Estate taxes and protect their assets from the high cost of nursing care, if they become ill.