As elder law attorneys, we help clients address the eventualities of aging. Our office is in Smithtown on Long Island, and census statistics paint a very clear picture with regard to the age demographic. According to Census Reporter, the median age is 45.3 years. Nationally, the median age is 38.
To break it down by the older age groups, 18 percent of people in town are between 50 and 59 years of age. The figure for people 60 to 69 is 11 percent, and 8 percent of the residents of Smithtown are 70 to 79 years old. About 6 percent of our neighbors here are at least 80.
A Looming Threat
That this is not a very pleasant thing to consider, but people that reach an advanced age should very concerned about incapacity, and Alzheimer’s disease is a leading cause. The Alzheimer’s Association is a great source of information on the subject, and they have found that one out of every eight seniors has Alzheimer’s disease. This figure swells to 40 percent for the oldest old, which is a geriatric term for elders that are at least 85 years of age.
Clearly, people with Alzheimer’s disease are going to become unable to make sound decisions on their own at some point in time. And as we have stated, yes, Alzheimer’s is a major culprit, but there are other causes of incapacity.
Adult Guardianship
If you do nothing to prepare for this eventuality, and you become incapacitated, interested parties could petition the court to appoint a guardian to act on your behalf.
This is not a bad thing for society as a whole, because there has to be some function in place to address to these situations. However, there are no guarantees with regard to the decisions that will be made by the court. If you cross your fingers and hope for the best, and you get to the point where you need someone to act for you, the court may empower someone that you would have never chosen yourself.
Another negative is the possibility of disagreements among your loved ones with regard to the choice of guardian. Under these circumstances, there can be ongoing acrimony among loved ones at a time when they should be pulling together to support one another during a difficult time.
Proactive Planning
It is possible to take steps in advance to avoid a guardianship. There are essentially two different types of decisions that must be made if you become incapacitated: financial decisions, and health care determinations. When it comes the latter, you can execute advance health care directives.
One of these documents is a living will. Doctors can sometimes keep people alive indefinitely through the use of life-sustaining measures like feeding tubes, artificial respiration, etc. How you would want that to proceed if you were in this position is a personal matter. You can state your choices in a legally binding manner if you execute a living will.
There are some types of medical questions that could arise that are not directly related to the use of life-support. To account for this, you can create a document empowering a health care proxy to make medical decisions on your behalf. In order for this to be done effectively, you have to include an HIPAA release form. This would give health care professionals the ability to share your medical records with your health care agent.
On the financial side of the equation, you can execute a document called a durable power of attorney. In this device, you would name someone to handle your financial affairs in the event of your incapacitation. There is a hybrid called a springing durable power of attorney. This POA would only go into effect if you do in fact become incapacitated at some point in time.
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Mark S. Eghrari, Estate Planning Attorney
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