When President Trump was admitted to Walter Reed Medical Center for Covid-19 treatment earlier this month, the internet exploded with “what if” questions on worst-case scenarios. What if the President became so ill that he could no longer do his job? What if the President were unwilling to relinquish control? What if the Vice President fell sick and they both became incapacitated? The 25th Amendment of the U.S. Constitution, which was adopted on Feb. 10, 1967, addresses issues of presidential succession, including who runs the country if the President is incapacitated. Certain aspects of the amendment are black and white, while others are less concrete and hotly debated.
People often think estate planning is all about what will happen after they die – who will inherit their assets, how much their estate may owe in federal or state estate taxes, etc. While these are important considerations, one of the more critical aspects of estate planning is designating the appropriate people to make decisions for you while you’re alive. Incapacity planning entails deciding who you trust to make financial, medical, business, and even parental decisions on your behalf should you experience a temporary or permanent mental or physical disorder.
Over the course of the pandemic, we have heard countless stories about people falling ill and family members being unable to visit them in the hospital. When someone who is sick goes from bad to worse overnight, you not only risk not being able to see them, but you run the risk of not being able to communicate with them at all. In those cases, barring proof of legal documents specifying who is authorized to make medical decisions on their behalf and what medical intervention they would approve or disapprove of, hospitals rely on the letter of the law. This could result in a hysterical or estranged family member having the final word on whether someone receives potentially life-saving measures or not.
Beyond medical care, when a person becomes incapacitated, there are other concerns. Who will take control of their finances – pay their bills, manage their money, etc.? Who will be responsible for the care of their minor children? Who will assume control of their business if they own one?
Failure to consider these choices while you are of sound mind and body can result in these decisions being determined by the courts, causing your loved ones pain and distress. Take time now to thoughtfully consider your incapacity planning options, some of which include:
Durable Power of Attorney
The legal document known as a power of attorney allows you to assign an individual of your choosing to act on your behalf. The trusted individual you name as power of attorney will have the ability to pay your bills, manage your investments, and make other decisions should you be unable to do so. General powers of attorney are nondurable, meaning that they cease should you become incapacitated. A durable power of attorney stays effective in the event you become incapacitated and become unable to tend to matters on your own. Without a valid durable powers of attorney, if you become incapacitated, your loved ones may not have the authority to handle your affairs; they may need to go to court.
A healthcare surrogate – or healthcare agent – is an individual that you name to receive durable power of attorney for your healthcare. This designation gives the individual the power to make medical decisions on your behalf if you should become incapacitated or unable to make medical decisions for yourself. Your healthcare surrogate will be given complete authority to make your medical decisions in that circumstance; however, they will not have the ability to override any healthcare instructions you have set forth in a living will.
A living will is a legally binding document that enables you to set forth your wishes regarding medical and end-of-life treatment decisions in the event of an emergency or incapacitation. You may specify the type of healthcare you want to receive as well as those treatments you do not wish to receive. By including a living will in your estate plan, your family members and medical professionals will receive clear instructions regarding your healthcare and medical treatment. When preparing a living will, it is best to be as detailed as possible in your instructions.
The Bottom Line
Things like accidents and viruses don’t discriminate. Incapacity can happen to anyone at any time, regardless of wealth, age, or status. If a person is declared physically or mentally incapacitated, decisions regarding their personal welfare or their finances become, whether temporarily or permanently, the responsibility of someone else. The only way to ensure that those awesome responsibilities will be managed by someone you trust, in the way you would have intended, is to have the proper legal documents drafted in advance!