By Trusts and Estates Attorney Kerri Castellini
I often receive calls from friends and family members of a loved one who recently suffered a catastrophic occurrence, such as a serious medical emergency or an accident. Either the friend or family member hopes that we can assist them with drafting a durable power of attorney or medical power of attorney so that financial and medical decisions can be made on behalf of the loved one.
Sadly, although we may be able to assist in other ways, we often cannot do any further estate planning for the individual. A durable power of attorney, medical power of attorney, and a Last Will and Testament must be signed while an individual has the requisite capacity to execute the documents.
After a catastrophic event, such as a stroke, it is often too late for an individual to sign documents allowing for someone to step into their shoes to make financial or medical decisions. Ironically, this is frequently when an individual needs incapacity planning the most.
If an individual can no longer make financial, legal, or medical decisions on their own, then it may be necessary for a friend or family member to petition the court to be appointed as guardian or conservator to make decisions on his or her behalf.
The guardianship/conservatorship process can be a costly and lengthy process that requires continued court supervision. Without nominating someone to serve on your behalf, there may be several family members with equal priority to serve.
If you have not prepared for emergencies, here a few reminders:
- A power of attorney or medical power of attorney can be signed as long as the individual has the required capacity to sign the document. Planning for incapacity usually must occur prior to an emergency.
- A power of attorney and medical power of attorney can often allow a quicker response period for the named attorney-in-fact or health care agent to assist in an emergency.
- A power of attorney can sometimes be helpful even if an individual maintains capacity, but has begun to lose mobility or is simply on vacation.
- Speaking with your attorney-in-fact or health care agent about your wishes while you maintain capacity arms your named agents to make better decisions on your behalf in an emergency situation.
- A power of attorney or medical power of attorney affects you while you are alive. Although most individuals focus more on drafting a last will and testament, your power(s) of attorney may play a bigger role for your personal well-being.
Planning for incapacity is never easy, but it can help make a difficult situation less arduous for your loved ones. In addition, it can ensure that you are well taken care of if the worst happens.