Speak for Yourself: Create Your Voice

When I sit down with new clients, they are often surprised when I  begin our discussion with what happens when they don’t die. Don’t die? That’s right. Many people think estate planning is all about wills, trusts, and what happens when you die. The reality is that planning for our life before we leave this earth is planning that is overlooked even though many of us are likely to need and use a plan that includes planning for incapacity.

Let’s not lightly gloss over the word incapacity. We have come to think (or hope may be a better word) that incapacity is about the elderly; about failing health and old age. However, incapacity can occur at any stage of one’s life. Incapacity is when you do not have the physical or mental ability to care for yourself, your property, or your finances. It can occur when you are a child, a teenager, a young adult, in midlife, or in your later years.

Many people tell me that they intend to plan for what happens if they become incapacitated when they start to lose their way, or when incapacity is knocking at the door. What they fail to recognize is that strategy doesn’t work! By putting off planning for incapacity, they are likely to never have a chance to put those important safeguards in place, and they will end up at the mercy of a judge and the court system when their faculties decline.

They think a plan for incapacity is only relevant to situations of declining mental health, such as the onset of dementia. What they don’t realize is that oftentimes their mental capacity is here one day and then by virtue of an accident, a stroke, concussion, a mental condition, or another mishap such as a car accident, a skiing accident, or a fall, it can be gone instantaneously. And as we have learned more recently mental faculties may experience a significant decline from a disease such as Covid-19.

Living Will v. Last Will and Testament

Many people are familiar with a last will and testament which is commonly referred to as simply a will. After all, many TV shows past and present have taught us about the will. A will not only states who will take charge of handling your estate but also your instructions for the court as to how you would like your assets to be divided upon your death. So, a will only deals with your assets and only becomes operative upon your death. A living will, in contrast, is about you, the care you will receive, and not about your assets. A living will is only operative while you are alive and in the event of your incapacity. A living will has nothing to do with what happens after death.

A living will is also commonly known as Advanced Health Care Directives (what your directions are as to the health care choices you want that are made in advance of needing the health care). It is a legal document that tells your loved ones and doctors how you want decisions related to your medical care handled if you become incapacitated and are unable to make such decisions yourself. Specifically, a living will outlines the procedures, medications, and treatments you would want—or would not want—to prolong your life if you become unable to discuss such matters with doctors yourself.

For example, your living will can spell out certain decisions, such as if and when you would want life support removed and whether you would want hydration and nutrition supplied to prolong your life.

A living will can prevent your family from undergoing needless stress and conflict when you are not around to tell them what you want to happen. Without a living will, your family will have to guess what treatments you would have chosen. In the worst cases, family members battle one another in court over the medical care you should receive.

A few of the most common decisions typically addressed in a living will include:

• Tube feeding: You can include instructions about if and for how long you would want tube feeding of food and water to prolong your life.
• Resuscitation (CPR): Your “CPR Directive” is a document that allows you to decide whether to be resuscitated or not if you are dying. A DNR is a bit different than a CPR Directive as a DNR must be approved and signed by a patient’s physician and will notify emergency responders from resuscitating an individual who is wearing a DNR indicator on their person.
• Intubation & mechanical ventilation: You can state if and for how long you would want to be intubated and placed on a mechanical ventilator if you could not breathe on your own. COVID has changed the way we look at ventilators. It used to be that many people chose not to be on a ventilator pre-COVID whereas, since COVID, more and more clients are choosing to be ventilated when they complete their living will. Intubation involves putting you into a medically induced coma and inserting a tube into your windpipe so that oxygen can be pumped directly to your lungs by a ventilator.
• Pain management & palliative care: These are instructions about pain management medications for comfort and pain management at the end of life.
• Organ/Tissue Donation: You can specify in your living will if you want to donate your organs and/or tissues for transplant, research, or other uses following your death.

Don’t Wait Until It’s Too Late

You must create your living will well before you become incapacitated and are unable to make your own decisions. You must be able to clearly express your wishes and consent for these planning documents to be valid. Even slight levels of dementia or confusion could get them thrown out of court.

Not to mention, an unforeseen illness or injury could strike at any time, at any age, so don’t wait!

A comprehensive plan for incapacity includes more than just a living will. There are other documents that support you in the event you become incapacitated. The other important documents to have in place during your lifetime are:

Your Health Care Power of Attorney allows you to select the person or persons who will make your health care decisions if you are unable to make your own decisions during your life.

Your Financial Power of Attorney allows you to choose who will manage your financial matters if you are alive and cannot do so yourself.

Your HIPAA authorization allows medical providers to share your medical information and health records with those who need to know.

As you can see, estate planning is so much more than having a will and planning for death. If you’ve yet to create your incapacity plan, we can advise you about the proper planning mechanisms to put in place. And if you already have an incapacity plan—even one created by another lawyer—we can review it to make sure it’s been properly set up, maintained, and updated. Contact us today to get started.