What is
incapacity planning?
We assume that we will always be able to make choices for
ourselves. Most of us take our independence for granted, but none of us know
what the future holds.
Unfortunately, some of us will not be able to
communicate our wishes- due to unexpected trauma, dementia, or other medical
emergency or condition.
There are legal documents available to preserve our wishes
and communicate them for us, in the event we are unable to communicate for
ourselves. Powers of attorney allow us to select an agent to act on our
behalf. Health care directives state our end of life wishes and allows us
to select an agent to act on our behalf.
There are also legal relationships available to provide an
agent to a person who can no longer manage their personal or financial lives. Guardianships
are established to manage someone’s personal life, and conservatorships
are established to manage someone’s financial life.
Powers
of Attorney
A power of attorney is a legal document that allows a
person to select an agent or agents to make financial decisions in the event of
their incapacity. The agent selected to make these decisions is called the
attorney-in-fact.
In considering a power of attorney, there are some options
to consider:
Do you
want to name one or multiple attorneys-in-fact?
Selecting an attorney-in-fact is an important decision.
Some people may prefer to have more than one agent. If so, they must decide if
they prefer those agents to act in succession or concurrently.
Do you
want the document to become effective immediately, or upon the event of your
incapacity?
Powers of attorney may either be durable or springing. A
durable power of attorney becomes effective at its signing. A springing power
of attorney becomes effective upon the event of incapacity.
Do you
want to use the statutory standard, or tailor specific provisions?
Minnesota has a statutory or “short form” power of
attorney. The form is a good fit for anyone who feels it accurately represents
their needs and makes no changes. A
common law power of attorney allows for specifying the provisions.
Health
Care Directives
It is difficult to consider mortality, and more so to
imagine a situation in which one is unable to make their wishes clear. Health
care directives allow a person to communicate specific information regarding
their expectations for the end of their life. The document includes an
opportunity to name an agent to verbally communicate those wishes to medical
personnel.
Health care directives are very important, but there are
also challenges presented in proper execution. Mortality is deeply emotional issue,
and not just for the individual. It is very important that a person drafting a
health care directive talk candidly with the person they choose as their agent.
It is critical that the agent be able to follow the terms of the directive.
Once a health care directive has been executed, it is important to give a copy
to health care providers and named agents. It is also helpful to talk about the
document with people close to you, and let them know where you keep your copy
in the event of an emergency.
Guardianships/Conservatorships
The documents discussed in the previous sections protect
people in the event of incapacity. Guardianships and conservatorships address
issues of incompetence. Our legal system recognizes that many people are
managing some parts of their lives and require assistance with managing other
parts. This recognition allows people to maintain independence.
As mentioned above, guardianships are put in place
to manage personal issues and conservatorships to manage financial issues. The
person subject to the guardianship or conservatorship is the ward. The agent is
either a guardian or conservator. The court appoints the guardian or
conservator. The guardian or conservator may either be a private individual or
a professional.