When planning your estate, you want to express your wishes regarding how you want your assets distributed after your passing. Many people think this is the long and short of it. But a well-constructed estate plan will address another possibility
Health Care Decision Making
You don’t know if you may become unable to communicate sound health care decisions at some point. This is not a pleasant subject and many people refuse to think about it, but this is a mistake. If you take the right steps in advance, you can minimize the negative impact.
With this in mind, your estate plan should include health care documents, including one called an advance directive for health care. This is a two-part document. The first part is your living will, in which you express your preferences with regard to the use of life-support measures such as resuscitation, mechanical respiration, and artificial nutrition and hydration.
If you choose, you can make different choices with regard to each of these types of life-support, as well as to the situations in which these decisions might need to be made. There are three situations in which such decisions might be appropriate: if you have a terminal illness, if you are persistently unconscious, or if you have an irreversible, untreatable illness or injury, referred to as an “end stage condition.
The second part of the advance directive is the appointment of your health care proxy, who will have the authority to make these decisions for you if you are no longer able to do so yourself. A living will can also include organ and tissue donation choices and comfort care meditation preferences.
Medical situations unrelated to life-support can arise at a time when you are unable to communicate. To account for this, should execute a durable power of attorney for health care. The person you name as your agent or health care proxy will be empowered to act as your representative if it becomes necessary.
The Health Insurance Portability and Accountability Act (HIPAA) was enacted in 1996, and it was put in place to protect patient privacy because sensitive information was being disseminated. A provision in HIPAA prevents doctors from sharing medical information with anyone except the patient.
The health care agent you name in your advance directive and health care power of attorney will need to talk with your medical team. To make this possible, you should include a HIPAA release authorization form that gives your doctors the ability to communicate freely with your representative.
Financial Matters
While we are on the subject of incapacity planning, we should touch upon the financial side as well. In addition to physical health conditions that can limit your ability to communicate, cognitive impairment can rob you of your ability to make sound financial decisions.
Your plan should name representatives to handle your financial affairs should it become necessary. If you have a living trust, you act as the trustee while you are alive and well. You should name a disability trustee in the document in case something goes awry.
For property that is not held by a trust, you should execute a durable power of attorney for property. The agent can be the same individual named as your health care representative, or someone else altogether.
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