Disability Planning is the Most Overlooked Area in Estate Planning – The Big 6 Disability Documents You Need Now!

Kevin stands at the door of Winnie’s nursing home room, tears streaming down his face. The medical staff just finished inserted a feeding tube into Winnie – an act Kevin knew she didn’t want. Unfortunately, Winnie couldn’t express her wishes due to advanced dementia, and she had no legal documents that expressed her wishes not to be fed by artificial means.  Kevin had no choice but to sit back and watch his wife go through a procedure she didn’t want.

The situation with Kevin and Winnie could have been avoided through the use of proper Disability Planning if Winnie had her elder law attorney prepare the Big 6 Disability Planning documents when she was “alive and well.” I refer to this as the staples or meat and potatoes of disability planning because most of us from an actuarial standpoint will become disabled or incapacitated before we check out. What that includes differs depending on your needs and wishes, along with what the law allows. However, it usually means at least a Health Care Proxy for your loved ones to make your medical decisions for you if you are completely incapacitated, Advanced Medical Directives so you can spell out what specific type of care you want or would not want, HIPAA authorization for your loved ones to get access to your medical records in a time of need, Living Will which is like a Do Not Resuscitate Order (DNR), Spoon-fed Directive so the nursing home staff does not sustain your life by spoon feeding you if you’re in a coma with no chance for recovery. A Durable Power of Attorney to manage your financial affairs and apply or medicaid or other government benefits to pay for your long term care needs.

The purpose of this set of documents is to allow you to control what happens to your health care and financial situation in case you cannot speak for yourself. If certain criteria are met, your doctors must consult with your Health Care Agents before making decisions about your care. You better make sure your health care agents are your trusted family members “helpers” and not strangers that could be picked for you by the Probate Court if you do not plan in advance.

Usually, what this means is that two doctors agree that an individual is terminally ill, permanently unconscious, or at the “end-stage” of a condition. Once that happens, and the individual cannot express their preferences, doctors turn to the your health care agents to figure out what the individual wants.

Back to Kevin and Winnie (names changed for privacy). Married nearly 50 years Kevin had zero legal authority over his dear Winnie to make her medical decisions or to manage her finances because Winnie never signed any of the “Big 6” before she became incapacitated with dementia. Kevin had no choice but to hire my firm to assist him with petitioning the Probate Court to get him appointed as his wife’s “Conservator” to manage her financial affairs and a separate petition for ‘Guardianship” for him to manage her health care affairs. About 9 months later and three attorneys later and lots of agonizing moments of feeling hopeless and helpless we were able to get Kevin appointed as his wife’s Conservator and Guardian, This was a very stressful and expensive process for our client navigating the complex rules of the probate court and having your hands tied with little to no control. My heart broke for Kevin when we stood at the Courthouse waiting for the orders to be signed by the judge. He turned and said to me, “Patrick, do you mean if Winnie just signed her Health Care Proxy documents and her Financial Durable Power of Attorney we would not be here today?” The sad but simple answer was YES.

This is a difficult subject to discuss, but as I often say at our educational elder law workshops, “unfortunately unlike fine wine, we typically do not get better with age.” They say 70% of people 70 and over will need some level of long term care medical assistance. That’s a big number. Unfortunately it happened to my mom and dad who both seemed perpetually young. My dad ending up passing in a nursing home and my mom passing at home after periods of disability and incapacity.

A wise man once said, when is the best time to fix a leaking roof? On a sunny day he said. If you do not have the “Big 6” Disability Planning in place for yourself and your loved ones do it NOW with your qualified elder law attorney because the cost and pain is too high otherwise.

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