Planning for Incapacity

However unpleasant it may be, every adult should plan for the possibility of incapacity. As a society we tend to wait, oftentimes until it is too late, to plan for death or disability. The reality is, however, that if you wait until the accident, illness, or death to happen it is too late to ensure your wishes are followed.

While each state has different forms and requirements, there are essentially three documents which will allow you to have your wishes followed and avoid court involvement should you become incapacitated. They are Health Care Power of Attorney with HIPPA release (sometime referred to as Health Care Proxy), a Living Will, and Financial Power of Attorney.

The Health Care Power of Attorney with HIPPA release allows you to appoint an agent, and successor agents, who will make health care decisions in the event you are unable to do so yourself. They are empowered to give consent on your behalf and the HIPPA release allows them to read your medical chart and consult with doctors about your medical care. Believe it or not, without this form your spouse is not entitled to make these decisions on your behalf. If you child has turned 18 and if off to college or work, they are legally an adult and should there be an accident, the parent is not entitled to make decisions without this form. In those cases where there is no designated agent, the court appoints a guardian on behalf of the incapacitated person. Most people would prefer to have a loved one in this role.

Depending on your state, the Living Will is sometimes combined with the Health Care Power of Attorney and HIPPA release. A Living Will allows you to make certain medical decisions in advance therefore your agent doesn’t have to make the decision for you. A great example of this is deciding in advance that you don’t want to be kept alive using artificial nutrition, hydration, or respiration if you are in a persistent vegetative state. By you choosing the medical treatment in advance, you relieve your agent of the stress and emotion surrounding this decision. Without this document, the court appointed guardian may be unable or unwilling to listen to your family regarding your wishes.

The Financial Power of Attorney allows you to appoint an agent(s), and successor agents, who will make financial and legal decisions for you in the event you are unable to do so yourself. Most commonly we think of an aging parent who names their child to handle their banking. However, accidents and medical events can happen at any time. It’s recommended that you have a Financial Power of Attorney that allows you to take back control once your capacity is restored. Without this document the court will appoint a guardian for you, and this guardian is typically an unrelated third party the judge selects from a pre-approved list, rather than your family member whom you love and trust. What’s worse is that if you regain capacity, you will have to go to court to prove to them you are better to regain control over your finances.

While the hope is that we will remain in control of our faculties throughout our lifetime, the reality is that many of us will be incapacitated at some point whether temporary or permanent. It’s best to have planned for this possibility in advance and to have executed the proper documents.

For additional information about planning for incapacity, contact The Presser Law Firm, P.A. for a complimentary preliminary consultation. The Presser Law Firm P.A. 6830 N. Federal Highway, Boca Raton FL 33487 (561) 953-1050 or email