By Barry Zimmer on November 5th, 2020 in Incapacity Planning
Attorneys in our field emphasize the need for incapacity planning, and people generally agree that it is important, but they envision end-of-life scenarios for senior citizens.
As the winter approaches, we are seeing a major uptick in the numbers of COVID-19 cases. When the pandemic originally emerged, it took everyone by surprise. You would never think that a novel coronavirus could send you to the intensive care unit unexpectedly.
This serves as a stark reminder that anything can happen to anyone at any time. It doesn’t take much effort to put a plan in place, and it is nice to know you have your bases covered going forward.
Advance Directives for Health Care
An incapacity plan will include documents, advance directives for health care, and one of them is a living will. We have heard a lot about the use of ventilators since the pandemic hit, and this is one type of life-support, but there are a number of others.
Utilization of life-support is a complicated subject, because people can sometimes be kept alive indefinitely when there is no hope of recovery. In other cases, a patients may recover, but it is likely that they will have devastating disabilities.
There is no right or wrong way to approach this question, because it is a matter of personal preference.
You certainly would not want to make this decision on behalf of an adult family member without any knowledge of their thinking. Plus, if you feel as though you know what they would want to do, what if your other relatives don’t agree?
If you envision this scenario, you can see why it is important to state your life-support preferences in advance. This is done through the execution of a living will.
When you establish your living will, you can address each respective type of life-support if you have different preferences for each technique. A living will can also include organ and tissue donation choices and comfort care medication preferences.
Another advance directive that should be part of the plan is a durable power of attorney for health care. This document is used to name an agent to make medical decisions on your behalf if you become unable to make them on your own.
Why would you need an agent when you already have a living will? You need a representative to address matters that are not related to the use of life-support.
The Health Insurance Portability and Accountability Act (HIPAA) was enacted in 1996, and it was put into place to ensure patient privacy. A provision contained within HIPAA prevents medical personnel from sharing health care information with anyone other than the patient.
This includes family members, and it is worthwhile to note that it applies to all adults that are at least 18 years old. When you are devising your incapacity plan, you should sign a HIPAA release to give doctors the freedom to discuss your condition with your agent and anyone else that you choose.
Complete the Plan
We are focusing on advance directives here, but we should touch upon the other parts of the equation.
You can add a durable power of attorney for property to name someone to manage your financial affairs in the event of your incapacity. If you are using a living trust as the centerpiece of your estate plan, you can designate a disability trustee to manage the trust if it ever becomes necessary.
And of course, your overall plan should address the way that you would like your assets to be distributed in the event of your death.
We Are Here to Help!
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