Maroney Law Blog

Monday, February 21, 2011

Incapacitated Without a Plan


What Happens Now? (Part I)

What happens if you become incapacitated without a proper plan and/or protective documents in place?  Your loved ones will be unable to make decisions, major, minor or critical, relative to your financial and personal health care needs/desires, unless or until a Guardian is appointed.
Doctors and other medical personnel may have listened to and acted upon comments from the spouse of the patient who has for years attended doctor visits, and even spoken for their spouse at those visits, because the more silent spouse could speak up for him or herself if they did not agree with the direction of his or her care.  All of that would stop, however, when and if one of the spouses became incapacitated.  If the incapacitated person is unable to speak for himself or herself, and does not have a Health Care Proxy in place, health care providers are precluded from doing anything except what they think is medically necessary for the ill person.  Even if the ill person would rather not have:
  • Surgery
  • A breathing tube
  • An infusion
  • A transplant
  • A diagnostic procedure;
The doctors will do whatever they think is medically necessary to treat the patient.  If a Health Care Proxy is in place, the well spouse or another trusted individual can step in and advise the medical personnel as to what he or she thinks best for the ill person and, even more importantly, what the ill person wants for himself or herself.
A Living Will is also a critical document for any incapacity plan.  The Living Will is often known as a Do Not Resuscitate (DNR) order.  It is a person’s written and explicit wishes to their health care providers as to whether they do or do not wish to remain on life support if they are in a permanently brain dead or vegetative state.
This document is similar to a Health Care Proxy and, in fact, most Health Care Proxies contain Living Will language as well.  The difference is that the Living Will can only take place if the person is in a permanently brain dead or vegetative state.  The Health Care Proxy, on the other hand, will trigger when the person is incapable of making their own decisions, but may be far from a permanently brain dead or vegetative state.
Likewise, with respect to financial or business matters, incapacity will bring your bank account, personal accounts, business accounts, property and other business transactions to a standstill, unless a Durable Power of Attorney is in place.  Even your spouse cannot act for you relative to business and financial matters, if the asset that is the subject of the intended action is in your own name and not jointly held with your spouse. Without the Durable Power of Attorney, your business and financial matters will be in limbo because no one can act for you.
All of this can be avoided, if while you have the capacity, you prepare a Health Care Proxy and a Durable Power of Attorney. These two forms will allow you, while of sound mind and body, to designate who you would like to be making your decisions for you when and if you become incapacitated.  Likewise, if your estate plan involves a Living Trust, the person you designate as your trustee will be able to immediately step in and take over the management of the assets held in the trust.  However, the Living Trust only applies to the assets held in the trust, so making a Health Care Proxy and Durable Power of Attorney are still very important in any estate plan.
If you don’t have these very important estate planning documents, please contact us at Maroney Associates.  We can walk you through the process and help you protect your estate and health care choices should you become incapacitated sometime in the future.
In our next blog, we will discuss the consequences of not having these documents which is a Guardianship Proceeding.

Based in Melville and Garden City, New York, the attorneys at the Law Offices of Maroney Associates, PLLC assist clients throughout Nassau County, Suffolk County, Queens, and the cities of Mineola, Hempstead, New Hyde Park, Franklin Square, Williston Park, Queens Village, Melville, Huntington, Farmingdale, Patchogue and Uniondale, NY.

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