Aging is inescapable, and while many have tried to delay or avoid the inevitable, none have succeeded. It’s important, therefore, to plan accordingly for old age. While this may include a myriad of things, estate planning (specifically incapacity planning) is vital in making sure that your arrangements are in order.
The Importance of Having Advance Directives
Estate planning entails the decision-making process behind how an individual’s estate (assets, life insurance, pensions, real estate, etc.) will be managed, maintained, and allocated after death. This ensures that the estate of an individual falls into the right hands posthumously.
Every estate plan, however, should take into account incapacity planning. Incapacity planning is the part of estate planning that accounts for situations in which an individual is still alive but is unable to specify or indicate what decisions they would prefer regarding their estate. In cases such as these, incapacity planning as part of a comprehensive estate plan guarantees that a trusted third party will be able to make legal and medical choices on behalf of an individual in the event that he/she becomes incapacitated.
What Are Advance Directives?
Incapacity planning is made possible through advance directives, which are legal documents that identify which steps should be taken once an individual is rendered incapacitated. The third party is required to follow these rules and make the decisions specified in said individual’s advance directive. The term advance directive can be used to refer to a number of estate planning documents, all of which – crucially – require the individual designating agents to be of sound mind and legally competent. Considering incapacity planning might be difficult, as contemplating the day when one’s life will no longer be in one’s own hands tends to be, yet the risk of not having a plan ready for emergencies far outweighs the discomfort one may experience when making these decisions. If a person doesn’t have any advance directives in place and has not appointed an agent to act on their behalf, a judge may appoint a guardian to take control of the incapacitated individual’s estate and make medical/legal decisions for them. The court can appoint anyone – even someone the individual does not know – or frustrate attempts by those acting on behalf of the incapacitated individual to petition for the appointment of an agreeable guardian.
Power Of Attorney
One of the advance directives available to estate planners is the durable power of attorney, a legal document which allows an individual to appoint an agent – preferably someone with the skills to manage financial matters – to make legal and financial decisions on their behalf. The selection of an agent should not be taken lightly, as they will be given ultimate authority to act on behalf of and handle the financial needs of an incapacitated individual – with or without their consent.
Health Care Proxy
Another of the advance directives available to estate planners is the health care power of attorney, a legal document in which an individual appoints a health care proxy – an agent who makes medical decisions and gives informed consent on your behalf in the event of incapacity. Such an agent should be someone you trust – and does not necessarily need to be the same person you assign power of attorney to. The health care proxy outlines an individual’s desires for medical treatment and also assigns their proxy the power to make changes as one’s medical condition changes. Health care facilities and providers are obliged to follow the decisions of a health care proxy, and a proxy has as much or as little power as an individual designates for them.
Living Will
The final advance directive of critical importance to estate planners is the living will. A living will is a document meant to control future health care decisions only when a person becomes unable to competently make these decisions for himself. The living will specifies the type of medical treatment that a person would or would not want to receive in certain situations. Further, the living will allows an individual to decide if they want certain medical decisions made, such as whether or not they would want food to be served to them in the event that they are deemed incompetent, whether they would want treatment for certain pains, and even “do not resuscitate orders,” which are instructions to not use CPR in the event that breathing or heartbeat should stop.
Health Care Proxy vs. Living Will
The crucial difference between a health care proxy and a living will is that in a health care proxy, one is designating their proxy as legally able to make medical decisions for them in the event they are incapacitated or unable to do so. In a living will, one is only outlining the treatments they would or would not want in the event of a terminal illness or incapacity. In New York State, a living will is only considered valid when one is designated as terminally ill, at the end of their life, or is unable to communicate their treatment or medical wishes.
Seek Out A Professional
As outlined above, incapacity planning is a truly vital part of a comprehensive estate plan. Without advance directives, your life’s work – your estate and assets – and, quite literally, your life, could be placed in someone’s hands without your consent. For an estate plan that incorporates incapacity planning, an experienced New York estate planning attorney who will help you draft an estate plan that suits your needs and your situation is highly recommended.