Planning for Incapacity

           None of us can foresee when an accident or a medical emergency might leave us unable to make our own decisions regarding medical treatment or legal issues. Rarely do we consider things like who will handle the everyday tasks, such as paying bills, renewing car insurance, or maintaining our homes? Even more importantly, what medical procedures are doctors performing on you, how far will doctors go to keep you alive, and who will know your wishes as to when to make that all-important decision to end all life-saving procedures? While we all hope never to experience this situation, it is important to plan for it to make sure that your wishes are known and are carried out.

           In the absence of any advance planning on your part, your loved ones will have no authority to make decisions for you and will need to petition the Probate Court to appoint a Guardian or Conservator to act on your behalf. "Guardian" and "Conservator" are the legal terms for individuals who can make legal and medical decisions on behalf of another person. However, the Probate Court may not appoint a Guardian or Conservator who would be the person you would choose to take on that responsibility if you had the opportunity to name someone. Another problem with Probate Court involvement is the cost, in both time delays and dollars, of using the court system.

           By simply taking the time to execute a Patient Advocate Designation (which names the person or persons designated to make medical decisions on your behalf) and a Durable Power Of Attorney (which names a person or persons designated to make legal decisions on your behalf) you can name the people you want and trust to making decisions on your behalf should you become incapacitated. You avoid arguments among family members and Probate Court involvement is eliminated.

           The Durable Power Of Attorney names a person, known as an Attorney-in-Fact, to make legal decisions on your behalf. A well-written Durable Power of Attorney lays out what authority your Attorney-in-Fact has over your affairs. At can allow that person to pay your bills, deal with your assets and investments, negotiate and sign contracts on your behalf, and even take care of your pets. It can also allow your Attorney-in-Fact to initiate legal proceedings on your behalf.

           The Patient Advocate Designation grants a person the authority to make medical decisions on your behalf. The person you name as your Patient Advocate has the authority to make decisions on treatment and care, as well as providing guidance as to your wishes concerning life-sustaining procedures.

           The decision to name a person to make legal and medical decisions on your behalf in the event you are unable to make them because of illness or incapacity should not be made lightly. You should choose someone you feel is capable of making these important legal and medical decisions just as you would. It is usually a good idea to name a second person in case your primary choice is unavailable. It is also a good idea to communicate with those persons name so they know that they will have the authority in the event of your incapacity and will know your desires if they are required to execute that authority.

           Both the Patient Advocate Designation and the Durable Power of Attorney are available for everyone over the age of eighteen. With parent/child situations, after the age of eighteen even a parent will most likely be required to petition the Probate Court to name a Guardian should their child become incapacitated. If married, a spouse is able to handle matters involving jointly owned property, but any other issue will require the authority of the Probate Court.

           It is important in creating these documents that you speak with an attorney familiar with the estate planning process. Your attorney will ensure that both the Patient Advocate Designation and Durable Power of Attorney clearly state your wishes and are sufficient for whatever purpose they are needed should you become incapacitated. Your attorney should also take the time to explain the scope of these documents and to advise you as to any additional documents that may be required to ensure that the people you name follow your wishes.