How Do I Prepare for Incapacity? www.germanlawgroup.com
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HOW DO I PREPARE FOR INCAPACITY?
“It is not a very pleasant subject to contemplate, but if you think about the circumstances that you may face toward the end of your life, incapacity is a very real possibility.”
How Do I Prepare for Incapacity? www.germanlawgroup.com
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When you think about estate planning, you are naturally going to consider the
way that assets will be transferred after you pass away. Arranging for
postmortem asset transfers is certainly at the core of the estate planning
process, but there are some other things to take into consideration if you want
to be comprehensively prepared.
It is not a very pleasant subject to contemplate, but if you think about the
circumstances that you may face toward the end of your life, incapacity is a very
real possibility. There are people who become unable to communicate at all due
to serious physical conditions, and this is part of the equation.
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There is also the matter of mental incapacitation and the ubiquitous nature of
Alzheimer's disease. Everyone has heard of this disease, but you may be
surprised when you hear some of the statistics.
The Alzheimer's Association is a great source of information about this horrible
disease, and you should certainly explore their site if you are concerned about
the eventualities of aging. According to their research, somewhere in the vicinity
of 45 percent of people who have reached the age of 85 are suffering from this
disease.
If you are thinking that you will probably never reach such an advanced age, you
should understand the facts. The United States Census Bureau tells us that the
segment of the population that was between 85 and 94 years of age grew faster
than any other age group during the 10 year interval between the last two
censuses.
The Social Security Administration has a life expectancy calculator on its website.
If you use this tool, you will find that a person who is turning 67 on this day will
probably live until he or she is at least 85 years of age.
When you digest these longevity statistics, you can see that Alzheimer's looms
large for all of us. You are probably aware of the fact that Alzheimer's disease
causes dementia. People with dementia are typically going to become unable to
make sound decisions on their own.
How Do I Prepare for Incapacity? www.germanlawgroup.com
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GUARDIANSHIP
The state could be petitioned to appoint
a guardian to manage your affairs if
you fail to make preparations for
possible latter life incapacity. You would
become a ward of the state if the court
determined that you were in fact
unable to handle your own affairs.
You would not have the final say with
regard to the person who represents
you, and family members could have
disagreements with regard to the
appropriate course of action. Though
guardianship proceedings serve a
purpose, the outcome can be less than
ideal.
INCAPACITY PLANNING
To avoid a guardianship proceeding, you could be proactive about the
implementation of an incapacity plan when you are devising your long-term plan
for aging. One document that would be part of the equation would be a durable
power of attorney for health care or health care proxy.
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With this document, you name someone to make medical decisions on your
behalf in the event of your incapacitation.
A durable power of attorney is an advance directive for health care. Another
advance directive that should be part of any incapacity plan is a living will. This
type of will does not apply to monetary matters. You would use a living will to
state your wishes with regard to the utilization of life-sustaining measures like
feeding tubes, artificial hydration, and mechanical respiration.
To account for financial decision-making, you could add a durable financial
power of attorney to name a financial representative. If you were to use a living
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trust as the centerpiece of your estate plan, you could empower a disability
trustee to administer the trust if you ever become incapacitated.
SUMMARY
Every well constructed estate plan will include an incapacity planning component.
Many elders become unable to communicate sound decisions late in their lives,
and you should certainly prepare for this eventuality in advance.
You can use durable powers of attorney to name people to act on your behalf in
a legally binding manner if it ever becomes necessary, and you can record your
life support preferences through the inclusion of a living will.
If you are currently unprepared, contact an estate planning attorney. Your
lawyer will gain an understanding of your unique personal situation and help you
put a comprehensive plan in place.
REFERENCES
Mayo Clinic http://www.mayoclinic.org/healthy-lifestyle/consumer-health/in-depth/living-wills/art-20046303 Alzheimer's Association http://alz.org American Bar Association http://www.americanbar.org/content/newsletter/publications/law_trends_news_practice_area_e_newsletter_home/durablepowerofattorney.html
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About the Author
Raymond J. German
As an attorney in Minnesota and North Dakota,
Raymond J. German provides a wide range of estate
planning services to his clients, with a primary focus on
helping them provide for the security of their loved
ones, reduce estate taxes and avoid or at least
minimize the costs and delays of probate, all with a
well-crafted estate plan. Mr. German defines the
mission statement for German Law Group, PC, as
"Helping one family at a time pass on values, beliefs
and finances, which can be shared for generations to
come." Mr. German is well aware of the growing importance of estate planning
and dedicates himself to informing the public of the need for careful attention to
their specific situations. He is a frequent speaker on a variety of estate planning
topics, regularly presenting educational seminars for the public as well as private
groups.
Raymond J. German approaches each challenge with not just solid expertise, but
also remarkable enthusiasm and vigor. By constantly seeking simpler, better, and
more effective ways of doing things, he continues to make a real difference in
the lives of families and on the way estate planning is practiced by attorneys
around the country.
German Law Group, PC
www.GermanLawGroup.com
GRAND FORKS
2650 32nd Avenue South, Suite O
Grand Forks, ND 58201
Phone: (701) 738-0060
Toll Free: (800) 774-7576
Fax: (701) 738-0064