Can anyone, even the most independent of us, say that they will never need help in life? No matter who you are or how accomplished you may be, you too can one day have a debilitating accident, or suffer an unexpected stroke, or slowly succumb to a disease of the mind like Alzheimer’s or other forms of dementia. If and when that day does come, you are going to want to be ready. You are going to want your loved ones and those closest to you to have the ability to help you, whether it’s for a week or for a decade.
Disability planning is the cornerstone of all estate planning, and it’s the first area that should be addressed whether you are a broke college student or a retired millionaire. This planning can be quite simple and relatively inexpensive, and it is essential to address countless fretful circumstances like:
- If you have an accident and are not conscious, who will be the one to communicate with your health care provider and make the important and urgent medical decisions for you?
- If you are laid up in a hospital or a rehabilitation center for weeks or months, who will be able to pay your bills and taxes, mind your business or stock interests, and care for your real estate?
- If your child is away at college, and you get word that he or she had been in an accident and is at the hospital, who will have the authority to talk to the hospital to find out what is going on?
- If you are ever on life-support, how will your family know under what conditions you would want life-sustaining measures cut off?
McCleer Law Office incorporates disability planning into all of the estate plans and long-term care plans it produces, but disability planning is also available as a stand-alone service. With this planning, you will receive Durable Financial Powers of Attorney, Health Care Powers of Attorney, and HIPAA Authorizations.
Frequently Asked Questions About Disability Planning
Whether you are young or old, healthy or ill, everyone has the capacity to succumb to some event that will require us to seek help from our friends and love ones. When it comes to personal decisions concerning our finances, property, or health, the law does not allow others to step in and make those decisions for us if needed without first going through the proper legal channels. Completing your disability planning before the need arises is far easier and less costly than waiting until after you require help.
Generally, disability planning comes down to have four properly executed documents commonly called “disability documents”: a Power of Attorney for Finances, a Power of Attorney for Health Care, a Living Wil, and a HIPAA authorization.
A Power of Attorney for Finances gives the authority to another individual (or group), your agent, to hand your affairs that concern your finances and your property should you ever need assistance with them. Your agent will be able do things like handle your banking, pay your bills, collect your mail, pay your taxes, and mind your business and property interests.
A Power of Attorney for Health Care is similar to the Power of Attorney for Finances in that it, too, gives decision-making authority to another person, but this authority concerns health care decisions only. If you are ever unconscious or are succumbing to a disease of the mind like Alzheimer’s, you agent will be able to speak with your health care provider and make decisions concerning what medications you will take, what procedures you will have completed, what doctors you will see, and so forth.
A Living Will is also called an advanced health care directive, and it has nothing to do with your estate – people often say “Living Will” when they just mean “Will” or “Living Trust.” The Living Will is a written statement of your wishes concerning your health care decisions that you want to be followed if you ever get to the point where you cannot communicate them yourself. This mainly concerns life support/end-of-life decisions. It’s important for your loved ones to know what your wishes are concerning life support, so along with sitting down and explaining your wishes to them face-to-face, you should also memorialize them in a Living Will.
A HIPAA authorization is a list of people that have the authority to talk with your health care provider about your health care-related issues. Health care information is private under federal law, and no health care worker may divulge any information concerning your health care to any person unless you give them written authorization to do so in a HIPAA authorization. To ensure that your health care agent will have access to all the information needed to assist you, you must list him or her on a HIPAA authorization.
It’s important that you not only have these four documents, but also that they will actually work for you when and where they are needed. A simple Power of Attorney for Finances downloaded from the internet will likely have very broad and general language that many financial institutions will shy away from because they don’t specifically spell out what the agent may do on your behalf. And while you will be able to get a Power of Attorney for Health Care form, a Living Will form, and a HIPAA authorization form from your health care provider, those documents may very well only grant authority to be used within that providers health care network. They may indeed be useful if you ever have a medical incident while traveling outside your network.
An experienced Estate Planning attorney will craft documents for you that will be comprehensive and universal, so your agents will have no trouble using them for any purpose and in any part of the country.
Ideally, every adult 18 years of age and older should have the documents in place. Nobody is immune from tragic events that could lead to incapacity. Even the parents of an 18-year-old high school senior would not have the authority to make medical decisions or even speak with the health care provider in the event of an emergency without these documents in place.
If you don’t have your disability documents in place and you become incapacitated, you are putting your loved ones in a tight spot. Somebody will have to petition the local court to become your legal guardian, and this is not an easy or cheap process. It’s a long and tense process that could involve up to three attorneys, none of whom are on the same page, and all of whom your family will be paying for. When all is said and done, one of your loved ones may succeed in being appointed your legal guardian, but his or her authorities will likely be severely limited by the court. For example, it is highly unlikely that a court will grant your guardian the authority to engage in Medicaid planning, and this may very well be at a time in your life when you need it the most.
There is no law that will cause your disability documents to expire. However, you should try to keep your documents “fresh,” meaning if yours are more than five years old, you should have new disability documents drafted and executed. Even if you change nothing about your disability documents other than the signing date, you should still update them every three to five years.