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What Happens If I Cannot Take Care of Myself?
By Michelle Beneski, Esq.
Part of estate planning is the process of putting together a plan and the associated documents to deal with your disability. It is something that many people avoid because they don’t want to think about their potential death or disability. This article covers the basic decisions you must make and the associated documents.
From a legal perspective every person has two sides, a personal side that deals with your physical body and decisions regarding it such as medical decisions or decisions on where you will live and a legal/financial side that deals with your “estate”. Your estate is the things that you own such as your house, your car, your bank accounts, and your legal obligations.
A common myth is that because you are married you are entitled to make the medical and legal decisions for your spouse if they are incapacitated. Another common myth is that children can handle legal and medical decisions for parents if they are incapacitated and vice versa. This is simply not true. If your spouse or parent got into a car accident and was in a coma without the documents described below, you are not legally authorized to make their medical or financial decisions. If you cannot make decisions for yourself, your family will be forced to have the legal system appoint someone to make decisions for you. This process is known as guardianship.
A Durable Power of Attorney –can avoid guardianship in most cases and is a legal document that allows another person to make legal and financial decisions for you when you are not able to make them for yourself. This is the instrument that someone could use to gain access to your bank accounts to pay your bills, sell your car, and deal with your insurance company. Everyone needs DPOA but it is a very powerful document. Care must be used in choosing the appropriate person.
Health Care Proxy/Health Care Power of Attorney – In Massachusetts we have a document known as a Massachusetts Health Care Proxy that legally authorizes another person to make medical decisions for you if you cannot make them for yourself.
HIPAA Release – This is a separate document that authorizes the named person to gain access to your medical records even if you are competent to make your own decisions. It is often very useful when children are assisting an elderly parent with bill paying and medical decisions. The parent may still be competent and thus the health care proxy is not activated. But the parent may want the child to be able to talk with his or her doctor or talk with the insurance company when dealing with a bill, etc. A separate HIPAA Release will allow a doctor’s office or insurance company to talk directly to the child.
Living Will/ Advanced Healthcare Directive- A living will is a document that informs your family, doctors, and others what medical decisions you would want when you can not speak for your self. It is in a Living Will that you indicate whether or not you want life support measures used if you are in a coma and unlikely to recover.
Guardian of Minor Children – If you have children under 18 years old, you should select someone who would raise those children if you were unable do it yourself. Just because you have discussed it with someone doesn’t mean that your other family members will know about this decision or agree with it if you are incapacitated. Sign a separate legal document indicating your choice not only if you die but if you are alive but unable to care for your children. While a court will always place the best interest of the children first, your opinion and desires will be given significant weight when making that decision.
As you can see there are significant issues that arise when someone becomes incapable of caring for herself. These issues are just as important at 30 as they are at 60. In a crisis, your family should be free to concentrate on your care and have the ability to take care of you medically and legally without having to get Court authorization to do it. Select your alternative decision makers yourself and provide them with the tools and guidance to make the decisions you would want them to make for you. In the end, doing so will save time, money and a lot of heartache.
Michelle Beneski, Esq.
Michelle D. Beneski, Esq. is a partner in the Surprenant & Beneski, P.C. located in New Bedford, Massachusetts. The firm concentrates on Elder Law and Estate Planning Issues.
She is a frequent speaker and author on estate planning topics.
Michelle is a graduate of Pepperdine University School of Law, Cum Laude and holds L.L.M. in Taxation from the University of Florida, College of Law. She is a member of the National Academy of Elder Law Attorneys, Wealth Counsel and the Bristol County Estate Planning Council.
We meet with our clients for Free every three years to ensure the documents still work for them. Surprenant & Beneski, P.C. charges $500 for an initial estate planning consultation. However, this consultation fee will be waived if you reference this article.
If you would like more information on Medicaid planning, call for our Free Consumers Guide to Medicaid Planning or our free report 25 Ways You Can Mess Up Your Estate Plan or to make an appointment for a consultation, call our toll free number (800)929-0491 for a recorded message or call our office at 508-994-5200.
Feel free to contact Michelle at 508-994-5200 or visit www.myfamilyestateplanning.com
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