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Planning for Incapacity: A Solid Way to Avoid Catastrophe

What happens if you end up in a hospital with a grave medical condition and or otherwise unable to make a financial decision or health care decision for yourself.

You’re incapacitated, terminally ill, or your medical condition or otherwise. Who’s going to help make those decisions for you with the doctor on your behalf?

If there are two options for surgery which one will the doctor need to pick?

If it’s determined that your chances of survival are nonexistent and you’re going to live in a vegetative state do you want a feeding tube down your mouth?

While you’re undergoing your procedure or in the medical provider who’s going to handle your financial affairs whose to take care of your property? As somebody been designated to deal with other individuals to make sure everything’s running smoothly on your behalf?

Incapacity Planning

In a comprehensive estate plan, it’s imperative to designate and declare who is going to help you in the case of incapacitation. Our estate planning attorney’s do this with three documents: the preneed guardian, the living will, and the designation of health care surrogate.

Preneed Guardian

A preneed guardian is an individual who you appoint to care for your property or estate should you become incapacitated. He or she should be legally competent and have an outstanding reputation to handle your finances at the time you reach the age of majority.

As part of a comprehensive estate plan you’re going to declare an official document who you want your preneed guardian to be, and who the backup or backups will be should the original Guardian be unable or unwilling to serve for any reason.

As a practical matter it’s common for an individual to appoint their spouse or domestic partner as the original preneed guardian. Often if the spouses unable or unwilling to serve then will do a backup of the eldest or the most responsible child for example.

Living Will

A living will is another declaration whereby you can voluntarily and willingly make known your desire in advance that you don’t want to have your life prolonged artificially under certain conditions.

So for example, perhaps you want to make it clear that you don’t want your life to be prolonged artificially if you have a terminal condition, and end-stage condition, or if you are in a persistent vegetative state and you’re attending or treating physician has determined that there is no medical probability of recovery from the condition.

Many times people will want to have a second opinion, so they require in the living will that the attending physician in another consulting position both must agree that there is no medical proverb the ability of recovery from the ailment or condition.

The living will is an opportunity to spell out exactly what you direct. For example:

  1. You may direct any life-prolonging procedures be withheld or withdrawn by your health care provider when the application these procedures only serves to prolong artificially the process of dying. In essence, you’re saying I want to die naturally with only the administration of medication or any medical procedures necessary to provide comfort and care to alleviate pain.
  2. You may direct that you don’t receive any nutritional hydration such as food or water through an invasive procedure. Think feeding tubes.
  3. Finally, you can use the living will is an opportunity to designate a surrogate to to carry out the provisions of your declaration. Usually this is your spouse or a close loved one.

Designation of Health Care Surrogate

What if you become incapacitated but the doctors need somebody to make informed consent for medical treatment and surgical and diagnostic procedures. For example, consider a situation where there is more than one course of treatment that a hospital doctor can provide. If your incapacitated who will make the decision?

The best practice is to have a designation of health care surrogate that spells out who will make those decisions. The health care surrogate designation will often:

  1. grant releases to the medical file
  2. employ and discharge medical personnel
  3. have access to and disclose medical records and other personal information of yours
  4. terminate the services of any healthcare professional and arrange for your transfer to another healthcare institution
  5. act on your behalf as a plaintiff or defendant in any court action related to your health care needs
  6. spend or withhold funds necessary to carry out your medical treatment
  7. consent to the performance of an autopsy.

It’s the best idea to make sure that the designation of health care surrogate is overridden by your living will. In the absence of a trusted family member, you can grant a durable power of attorney to an attorney for health care to act as your surrogate and help you with the medical decision in the future.

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