Preparing for Incapacity

There are a wide variety of situations or events in our lives that can result in temporary lack of competence or even permanent incapacity. If proper planning is not in place, family members may have difficulty taking care of finances, handling legal matters, and making health care decisions on your behalf.

What is Incapacity?

In order to be able to sign contracts and other legal documents or make medical decisions for yourself, you must be competent. Definitions of competency vary depending on the type of decision or legal act you will be engaging in. However, there are two Idaho laws that are useful in helping explain what it means to be incapacitated or incompetent. First, the statutes covering guardianships define incapacity as lacking sufficient understanding to make responsible decisions. The person furthermore must be likely to suffer substantial harm due to inability to provide for his basic needs (food, clothing, shelter, health care, safety) or manage financial affairs. The Idaho laws that discuss consent for medical care would qualify a person as incompetent if she did not possess sufficient intelligence and awareness to understand the need for, the nature of, and the risks of a contemplated medical treatment.

Below, we will discuss some of the legal options available in planning for incapacity. But it is important to note that any legal documents that require your signature can only be executed while you are still competent. Therefore, if you do not plan ahead, your family may be stuck having to pursue the most complex and costly of these options, a guardianship and conservatorship.

Power of Attorney for Finances

A power of attorney is a legal document that gives a person of your choosing, called your agent, the authority to act in your place. A well-drafted power of attorney should indicate that it is durable, which means that it is not affected by future incapacity or disability. A power of attorney that is not durable would become invalid once you became incapacitated, and thus wouldn’t accomplish the goal of planning ahead for possible future incapacity. A power of attorney can be either springing, effective on signing, or effective on a given date. Springing means the power of attorney does not take effect unless or until a given event occurs, such as physician certification that the signor can no longer handle his own affairs. If a power of attorney is effective on signing, that means your agent can start acting on your behalf and exercising her powers right away. A power of attorney has the potential to be taken advantage of and you should therefore carefully consider who you name as agent, what the scope will be of the powers you grant, and when you want it to become effective.

A power of attorney for finances deals with legal and financial matters. A typical power of attorney for finances would address what your agent’s authority will be to manage: real property, personal property, investments, bank accounts, operation of a business, insurance and annuity accounts, estates and trusts, litigation claims, personal and family maintenance, government benefits, retirement plans, and taxes. An elder law or estate planning attorney can personalize your power of attorney to also include specific provisions and instructions to address your particular needs and goals.

Power of Attorney for Health Care, Living Will, and POST

A power of attorney for health care is a document that names an agent to make medical decisions for you when you are unable to communicate your wishes to your health care providers. A power of attorney for health care is considered springing because the agent’s authority to make decisions for you only kicks in if you are incompetent or otherwise unable to communicate. A power of attorney for health care is a very important planning document because it clearly states your wishes regarding who you trust to make important medical decisions, which makes things easier for your family and your health care providers. It is also a way to document particular wishes and special instructions regarding your medical care.

Typically, a power of attorney for health care is accompanied by a living will. A living will is a document that states what your wishes are regarding life support in the event you are terminal and in a vegetative state. A living will asks you to identify your specific wishes regarding artificial life support, artificial nutrition (e.g., feeding tubes), and artificial hydration (e.g., I.V. hydration).

A power of attorney for health care and living will should be given to your physician so that it becomes part of your medical record, and it can also be recorded with the Secretary of State’s office so that hospitals throughout Idaho would have access to it.

Finally, a Physician Order for Scope of Treatment (POST) is similar to a living will, but is a form that is completed by a patient and a physician. The physician goes over the form with a patient to discuss care options where the patient has an incurable injury or condition. The physician and patient should review the preferences set out in the POST form periodically.

Guardianship and Conservatorship

If a person is incapacitated, for example due to Alzheimer’s or dementia, and is no longer able to make reasoned decisions, care for himself, or handle financial matters, then he may need a guardian and/or conservator. A guardian is a person appointed by court to make decisions regarding housing, medical care, and day to day care for an incapacitated person, called a ward. A conservator is a person appointed to manage the finances and property of an incapacitated person.

The guardianship/conservatorship process begins with a petition to the court. Any person who is interested in your well-being and affairs may petition the court, but spouses, adult children, or agents named in a power of attorney would have preference. The petitioner must show that the proposed ward is no longer competent and cannot handle her own affairs. The court then appoints a court visitor to interview the petitioner and the proposed ward and to submit a report of her findings to the court. A guardian ad litem is also appointed, and he acts as an attorney to represent the best interests of the proposed ward. A hearing is held and, if the court finds that the proposed ward is incapacitated, then a guardian and/or conservator will be appointed. The guardian and conservator must file a report with the court annually regarding the status and finances of the ward.

A guardianship/conservatorship can be an essential tool in assisting family members with Alzheimer’s, dementia, or other forms of incapacity. But it has drawbacks. First, the process is lengthy, often 3-4 months from start to finish. Second, guardianship petitions are complex and can be costly. Finally, a guardianship essentially revokes the rights of the ward to make decisions on her own behalf. In sum, guardianship is a necessary tool in many situations. But, with proper planning, by having well drafted power of attorney and other advanced documents in place, you can reduce the chances of your family members ever needing to resort to a guardianship proceeding.