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HOW TO PLAN FOR THAT DAY WE ALL HOPE WILL NEVER COME…
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H o
T
J H
(THE DAY WE’VE LOST OUR MARBLES!)
WITH ANE
ANAWALT
A TTORNEY AT L AW
Thanks to advances in medical care and with many of us leading
generally healthier lives there is a very real likelihood of our living
signifi cantly longer than our parents and grandparents did. Most of us
will live well into our elder years enjoying good health and retaining
all our marbles. But there are, so tragically, many among us who, at
some point and with little warning, will become mentally or physically
incapacitated well before they die. With my practice centering on elder
issues and estate planning I see, all too often, the unfortunate result
of inadequate preparation for such an eventuality. The reality is that
planning for such a situation is frequently more diffi cult than planning
for one’s death; mainly because most of us would simply rather not
think about it and hope for the best.
funds to provide for your support and that of your pets; and changing
your address with the post offi ce. The most important consideration
in executing a DPOA is the decision on whom to appoint, as this is the
person who will literally take your place, carrying out transactions on
your behalf.
ADVANCE DIRECTIVE
(appointing a representative for health care)
In this self-completed and statutorily required document, you will
appoint a personal representative for health care, and indicate your
desires in response to hypothetical situations presented therein, as
to what type of medical intervention you desire in the event of your
impending death. The persons appointed may be given authority make
decisions as to the use of life support on your behalf. Under Oregon
law, your personal representative for health care may also speak
with medical professionals, review your records, and have access to
information normally protected by the Health Information Portability
and Accountability Act (“HIPAA”). A Durable Power of Attorney
for Health Care, giving more specifi c authority to your health care
representative, is sometimes prepared for attachment to the Advance
Directive.
The hard fact is that planning for potential incapacity is as important --
possibly more important -- than planning for your death. Even without
a Last Will or other estate documents (a really bad idea) the State will,
through the intestate succession laws, administer the disposition of your
property and the distribution of your assets. Not so with incapacity.
Without a plan, your family may well end up in court, frequently in
an adversarial situation. In order to determine your fi tness to continue
managing your own affairs and tending to your own physical health
and safety, a judge will assess the medical and other evidence of your
incapacity. This will frequently include a battery of medical tests and REVOCABLE LIVING TRUST
examinations, as well as testimony from your friends and loved ones. (giving direction in the event of your incapacity)
Thus it is critically important for all of us to have in place a sound plan A revocable living trust is mainly thought of as a Will substitute and
for dealing with potential incapacity. Such a plan may include:
probate avoidance mechanism. However, within the sections of a
properly prepared Revocable Living Trust may be included preferences
for how you wish to be cared for in the event you are no longer able to
articulate those wishes to those who will care for you. In such language,
Oregon law uses the term “fi nancial incapability” to describe persons your successor trustee is given authority to utilize trust funds to provide
for the goods, services, and quality of life
who are deemed incapable of handling
you specify. Such trust provisions, and
their basic business affairs. To deal with
others directing management of fi nancial
this situation a Durable Power of Attorney
assets, may give enough direction to
for business affairs contains a delegation
provide a “least restrictive alternative” to
from you to another person or persons,
The “Incapacity” plan must be in place
the need for a formal guardianship and
granting to them the authority to carry out
BEFORE you lose your marbles!
conservatorship in which someone else
certain tasks on your behalf, as your agent
must be appointed by the court to assume
and attorney-in-fact. Such delegations
Be sure all of your documents referencing incapacity
all legal duties to be carried out on your
often include powers such as, among
agree in every detail. Any ambiguity may derail the
behalf. You can also give direction as to
others, payment of taxes and dealing
entire plan. This is most common when separate
how your fi nancial incapability is to be
with taxing authorities; interaction with
documents have been drafted at different times and
determined, and who should be involved
insurance companies; paying your bills
prior documents are not thoroughly reviewed when
in making such determination.
and signing checks; accepting funds for
revisions are made.
deposit on your behalf; expending your
DURABLE POWER OF ATTORNEY
(for business affairs)
Key Points
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