Lifetime Planning
Lifetime Planning
Estate Planning is concerned with not only planning for death, but also for life. While lifetime planning may include establishing a gift giving program to family members and to charities for tax and other purposes, the primary focus tends to be upon planning for incapacity.
Many people find the idea of planning for incapacity distressful and might be uncomfortable discussing the matter. However, we are aware that this is a sensitive topic for many, and we try to make you feel at ease so you can make the decisions that are best for you.
Planning for incapacity usually involves managing the financial affairs and providing for the physical care of the individual. The documents typically used are a durable general power of attorney, a health care powers of attorney, and perhaps a living will. A general power of attorney provides for the management of the financial affairs of an individual, while a health care power of attorney and a living will handle the health care wishes of an individual.
While incapacity can be a consequence of the aging process, it can also be created by injury or illness. As such, possible incapacity is not just confined to the elderly, but young adults may also become incapacitated. Even young adults may want to consider discussing protective planning measures such as a durable power of attorney, health care power of attorney, and a living will with an attorney.
A durable general power of attorney is an instrument that allows you to designate a person to act on your behalf. In the instrument, you are referred to as the “Principal” and the person you appoint is referred to as an “Attorney-in-Fact” or “Agent.” The durable general power of attorney is a useful instrument because it allows the Agent to handle your affairs and sign documents on your behalf when you are unavailable or unable to do so. Your Agent has the power to perform a variety of acts on your behalf, such as handling bank account transactions, filing tax returns, dealing with insurance companies, and even operating businesses. For example, if you are in an accident and injured, or traveling outside the country, the durable power of attorney allows the Agent to handle your affairs for you.
The instrument is a particularly useful device when planning for possible incapacity. This is because the power given to the Agent continues throughout the incapacity, but not the death, of the Principal. The fact that it is effective during your disability is why it is called “durable.” If you do not have a durable general power of attorney in effect when you become incapacitated, a guardianship will most likely be required to handle your financial affairs. Unlike the power given to an Agent under a general power of attorney, a guardianship is subject to court supervision, which means it can be costly and cumbersome.
While a durable general power of attorney is designed to be used during your disability in an effort to avoid a guardianship, there are certain things your Agent cannot make you do, such as make you seek appropriate medical care. If you become a danger to yourself or others, your Agent cannot help you. Only a court appointed guardian can. In your power of attorney, you can name the person who you would want to be your guardian [link to future definitions], were it ever necessary.
If you contact us, we will be happy to explain to you the benefits and disadvantages of a general durable power of attorney, help you determine whether this instrument is right for you given your particular circumstances, and guide you through the process of naming an Agent and successors.
2. Living Wills and Health Care Powers of Attorneys.
With respect to heath care decisions, there are two documents often used in planning for incapacity: the Health Care Power of Attorney and the Living Will. The Health Care Power of Attorney allows you to designate a person, referred to as an “Agent,” who will have the power to make health care decisions on your behalf if you are incapable because you are unconscious, mentally incompetent, or otherwise unable to make such decisions. Powers include the right to consent to or refuse treatment and to select and discharge physicians. It is important to note that even after you have executed a Health Care Power of Attorney, it only comes into effect when you are unable to make decisions concerning your own health care. A Living Will is a document that allows you to express your wishes concerning whether you want life-sustaining procedures such as the withdrawal of feeding and hydration tubes if you become permanently comatose or terminally ill.
Although both of these documents are considered “Advance Care Directives” because they allow you to express what you would want to happen in the event you are unable to make health care decisions on your on behalf, they are different. A Health Care Power of Attorney allows you to appoint an agent or agents to make health care decisions for you, whereas a Living Will only allows you to articulate your wishes concerning life-sustaining procedures.
We can also discuss with you the related issues of tissue and organ donations. We understand that this can be a sensitive topic, raising concerns including objections based on personal or religious beliefs. We are available to discuss the scope and options of donation to help you reach the right decision for you.
In particular, the discussions of who will make health care decisions on your behalf in the event that you are unable to so are uncomfortable to many. You may have specific concerns because of religious beliefs or may not wish to burden loved ones with the responsibility of making significant health decisions on your behalf. We will help you work through these concerns.
While the thought of losing the ability to make both financial and health care decisions for yourself is troubling, we can provide you with guidance and the tools to help prepare you for whatever the future holds, so please contact us.
