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How Will Decisions Be Made If I Am Incapacitated? Part 1: Healthcare Proxies, Living Wills, and Powers of Attorney

How Will Decisions Be Made If I Am Incapacitated? Part 1: Healthcare Proxies, Living Wills, and Powers of AttorneyIf someone becomes incapacitated or is unable to communicate their wishes, who makes decisions on their behalf? How do decisions get made? What gives someone the legal authority to make decisions?

If you plan ahead, you can create a power of attorney, healthcare proxy, and a living will to protect yourself and your wishes in the event that you lose the capacity to make decisions. The power of attorney names an agent who can take care of your financial and legal affairs. Depending on how the power is defined, the agent, who serves as a kind of alter ego, can handle everything from paying bills and picking up mail, to taking care of investments and selling real estate property. They could basically do everything that you can do except vote on your behalf or create your will.

On the other hand, the healthcare proxy names an agent who can take care of your healthcare needs and make medical decisions on your behalf. And the living will provides instructions regarding your end-of-life care decisions. If you do not have advance directives, you and your loved ones could have a very difficult time. It is very stressful, time-consuming, and costly to get someone appointed to make these decisions if you are already incapacitated.

This issue often comes up in elder law. In our practice, we see that older folks are more likely to encounter a situation where they are suffering from dementia or another medical ailment that prevents them from being able to make decisions on their own behalf. Or they could be physically incapable of handling their financial or legal affairs. Our goal is to work with individuals early, when they still have the capacity to make their own decisions, so that they can plan ahead.

If you do not plan ahead, you could lose control over who is chosen as your agent to make important healthcare and financial decisions on your behalf. In turn, this could cause decisions to be made that are inconsistent with your wishes and you could lose assets you have worked so hard to accrue. Additionally, your inability to plan ahead could cause turmoil among your family members. For example, your children could fight with each other over important healthcare decisions, and that could leave you in a situation where you are dying while they are struggling to make a decision or come to terms with the decision that needs to be made. Or you could have an 18-year-old child who is an adult in the eyes of the law, but who may not be emotionally equipped to make a life-and-death decision for their parent. Under the law, they may be the person that would make that very difficult call unless you have named another person to be your healthcare proxy ahead of time. That same 18-year-old may also feel overwhelmed by financial and legal decisions.

Both the power of attorney agent and the healthcare proxy have to act in your best interest. They have to make decisions for you according to the wishes that you have made known. That is why we always advise our clients to speak with the people they are appointing as agents and let them know what they would do in a given situation, share their philosophies on medical care, and let them know what their beliefs are so they can honor them. If you do not share your wishes about medical care, then the agent may be stuck in a situation where they need to make a judgment call. And that is never a good thing. It adds stress to the agent’s life, and sometimes they make decisions that you would not want.

Typically, if someone does not create these advance directives, and they become incapacitated, a guardianship court becomes involved and a guardian is appointed. In the second half of this series, we will talk about guardianship in greater detail. 

Contact the Russo Law Group P.C. to discuss your situation.

Eric J. Einhart

Eric J. Einhart
Russo Law Group, P.C.
100 Quentin Roosevelt Blvd., Suite 102
Garden City, NY 11530
800-680-1717

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