“One of the best ways to encourage a person to create an estate plan is to explain to them what happens if they fail to create one,” one New York estate planning attorney wisely observed. In fact, we find at Geyer Law, clients have little trouble facing up to the eventuality of their own deaths; what’s very difficult for many is imagining and planning for a situation in which they are alive, but unable to continue controlling their own affairs. But…
- Who’s going to keep the bills paid?
- Who’s going to take care of getting you to doctors’ appointments and following doctors’ orders?
- Who’s going to cancel any magazine or newspaper subscriptions?
- Who’s going to be able to drive your car? Sell it?
- Who’s going to take over for you in caring for your child or for your dependent parent?
- Who’s going to review your insurance policies?
- Who’s going to file your state and federal tax returns?
As attorneys, we need to be sensitive to the challenges and family dynamics that come into play when clients are in denial about the prospect of incapacity. While we adopt an empathetic and compassionate approach to our client‘s fears and concerns, we know we must not waver in making sure they are prepared for “no matter what” contingencies.
There are two aspects to be considered in preparing for incapacity:
1. Financial affairs
The operative document is a Power of Attorney, giving another person the right to make financial decisions in your name. The “agent” you appoint may have authority to assist you immediately or may have no power to act on your behalf until and unless you become physically and/or mentally incapable of managing on your own..
An Indiana Advance Directive for Health Care should be put in place in which you designate someone to make health care decisions for you if you become unable to make decisions for yourself. This document also includes medical information access and allows you to specify your wishes as to end-of-life care.
The Advance Directive for Health Care went into effect July 1, 2021, and replaces the three documents previously used to appoint health care decision-makers – a medical or healthcare Power of Attorney, a Living Will and a HIPAA authorization. These three documents are grandfathered in and remain effective after July 1, 2021 for those who already have these documents in place. As part of the Indiana Advance Directive for Health Care, you may consider using language from the non-profit Aging With Dignity, which created a document called The Five Wishes. The wishes include:
- The person I want to make care decisions for me when I can’t
- The kind of medical treatment I want or don’t want
- How comfortable I want to be
- How I want people to treat me
- What I want my loved ones to know
No, we don’t like facing the possibility of being incapacitated, unable to care for ourselves or to be in charge of our own affairs. Focusing on the other people, the ones who will need to carry out our wishes for us, helps us do the right thing – to ease the way for them.
– by Cara Chittenden, Associate Attorney at Rebecca W. Geyer & Associates