Did the Pandemic Spur Incapacity Planning Awareness?

advance directives for health care

Far too many people are going through life without estate plans in place, and sometimes an unexpected event will provide a wake-up call. For most of 2019, no one would have ever thought that intensive care units would be overflowing in just a few months.

The pandemic was an enormous shock on many levels, but from an estate planning preparedness perspective, it did not have much of an impact. In fact, the numbers have gone in the wrong direction.

Caring.com has been conducting annual surveys for several years now. In 2019, they found that 57 percent of American adults did not have wills or living trusts in place. This year, almost 67 percent of people surveyed were completely unprepared.

Incapacity Planning

Estate planning is often looked upon as a purely financial endeavor, but in fact, there is another element. You should prepare for end-of-life matters as well, and the importance of this has been demonstrated by the COVID-19 situation.

There are vaccines and better treatments now, but at the time of this writing during the summer of 2022, there are over 29,000 hospitalizations. People with severe cases may become unable to communicate their own medical decisions.

Many of them do not have advance directives for health care in place. These are documents that are used to assert your medical preferences in advance, and one of them is a living will.

This type of will is not connected to financial resources in any way. You record your choices regarding the use of life-support measures in a living will. The document can also contain your organ and tissue donation and comfort care medication elections.

Decision making scenarios may arise that are not connected to the use of life-support. To account for this possibility, you can name a decision-maker in a durable power of attorney for health care.

HIPAA regulations prevent doctors from sharing medical information with anyone other than the patient. You should include a HIPAA release to give your representative and anyone else that you choose the legal right to access your records.

While we are on the subject of the HIPAA release, if you are a parent of a child that is going to become a legal adult soon, action is required. As soon as they reach the age of 18, doctors would not be able to talk about their medical condition with you unless they sign a HIPAA release.

Cognitive Impairment

People of all ages can experience cognitive impairment after sustaining injuries, and serious medical conditions can impact neurological functioning. And of course, elders are vulnerable to Alzheimer’s induced dementia and other dementias.

In addition to the medical part of the equation, your incapacity plan should address financial decision-making. If you have a living trust, you will be the trustee while you are living. When you draw up the document, you can empower a disability trustee to assume the role if it becomes necessary.

To account for property that is not held by a trust, you should add a durable power of attorney for property. Clearly, if you do not have a trust, the durable power of attorney for property would be that much more important.

If you do nothing to prepare for possible incapacity, the state could be petitioned to appoint a guardian to act on your behalf, and you would become a ward. Most people would prefer to avoid government intervention. You have the power to do so if you take the right steps in advance.

We Are Here to Help!

Our office is open if you would like to work with a Westport or Glastonbury, CT estate planning lawyer to put a plan in place. We will help you address incapacity, and your plan will facilitate postmortem asset transfers in the optimal manner.

You can set the wheels in motion if you call us at 860-548-1000, and you can use our contact form to send us a message.

John McCann, Estate Planning Attorney
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