What happens if you become incapacitated and unable to communicate healthcare and end-of-life care for yourself? If you became incapacitated and advance planning had been done, your family will have the legal documents you need. Just as importantly, they will know what your wishes are for incapacity and end-of-life care. If there was no planning, your loved ones will have to start with a lengthy application to the court to have someone named a guardian. According to Beck & Lenox Estate Planning & Elder Law, LLC, a guardian is someone who has legal authority to make medical decisions on your behalf.
Having a plan in place beforehand is always better, explains the article “If I become incapacitated, who makes healthcare decisions?” from Waterdown Daily Times.
Another reason to plan ahead: the court does not require the guardian to be a family member. Anyone can request a guardian to be appointed for another incapacitated individual, whether incapacity is a result of illness or injury. If no planning has been done, a guardianship must be established.
This is not an easy or inexpensive process. A petition must be filed, and the person in question must be legally declared incapacitated. In some cases, these filings are done secretly, and a guardianship maybe established without the person or their family even knowing it has occurred.
There are also many cases where one family member believes they are better suited for the task, and the family becomes embroiled in controversy about who should serve as the guardian.
The entire problem can be resolved by working with an experienced estate planning attorney long before incapacity becomes an issue. At minimum, everyone should have their Powers of Attorney documents in order. Here is a brief overview of that from Beck & Lenox’s website: https://beckelderlaw.com/estate-planning/power-of-attorney/.
Ideally, a comprehensive estate plan will be advised and would include a plan for distribution of assets (Last Will and Testament), Power of Attorney, Healthcare Power of Attorney and a Living Will. Note: At Beck & Lenox, we include the living will within the Healthcare Power of Attorney.
These last two documents work together to describe your wishes for end-of-life care, medical treatment and any other medical issues you would want conveyed to healthcare providers.
Unfortunately, the pandemic revealed just how important it is to have these matters taken care of. If you did create these documents in the last few years, it would be wise to review them, since the people in key roles may have changed. While the idea of being on a respirator may have at one time been a clear and firm no, you may feel otherwise now.
A Healthcare Power of Attorney is an advance directive used to name a person, who becomes your “agent,” to make healthcare decisions. If there is no Healthcare Power of Attorney, physicians will ask a family member to make a decision. If no family can be reached in a timely manner, the court may be asked to appoint a legal guardian to be the decision-maker. In an urgent situation, the physician will have to make the decision, and it may not be the decision you wanted.
The Living Will explains your wishes for end-of-life care. For instance, if you become seriously ill and don’t want a feeding tube or artificial heart machine, you can say so in this document. You can even state who you do and do not wish to visit you when you are sick.
The best advice is to have a complete estate plan, including these vital documents, created by an experienced estate planning attorney. What happens if you become incapacitated ? Your agent has authority to act on your behalf.
Beck & Lenox always likes to remind you, if you have an estate plan and have not reviewed it in the past three to five years, make an appointment with your attorney to have it reviewed. Hopefully, your attorney offers that review at no charge.
Reference: Watertown Daily Times (April 14, 2022) “If I become incapacitated, who makes healthcare decisions?”