What Types Of Details Need To Be Covered In An Incapacity Plan?

The details that need to be covered in an incapacity plan should be:

• care instructions,
• final medical decisions,
• identification of financial resources and allocation of financial resources.

Let me break down what I mean by these things.

First, your level of detail and your incapacity planning should give care instructions. For example, if I am diagnosed with dementia, I may not be able to express my wishes as it applies to how I am cared for. Do you want to be cared for at home? Is that financially possible or would you be okay due to financial aspects being cared for at an assisted living or a nursing home? Do you want to be taken out in public? What family members should be visiting you on a regular basis? What family members should be kept away from you on a regular basis? What are my favorite foods, activities and so forth that would keep me happy even if I was disabled? Will I be happy being fed seafood and being put in front of a TV? For some people, that might not be something they would want and that kind of thing can even go into a living will or other health advance directives. Other care instructions could include care settings, courses of treatment and so forth.

The next type of detail that could be in an incapacity plan is final medical decisions. Typically in a living will, the standard format in Florida expresses what you would want to have happen if you are incapacitated. The default living will format in Florida requires two doctors to say that you’re incapacitated, there is no medical probability of recovery, and that you’re in either an end-stage condition, terminal condition or persistent vegetative state. Under those circumstances, most people will sign on saying I do not want life prolonging procedures and I do not want the dying process to be artificially prolonged. You can go one step further in a living will and explain when you do or do not want a do-not-resuscitate order, commonly referred to as a DNR. A do-not-resuscitate order is not done with an attorney but rather with a doctor and you or the person you name as your healthcare surrogate. You can also express in your final medical decisions about whether you would want, for example, cancer to be treated or not treated if you’re also incapacitated and you cannot express that wish, whether those sort of medical decisions and placement decisions and medical treatment decisions can be covered in your incapacity planning.

In your incapacity planning, you can also cover your identification of financial resources. Many times family members or parents will keep their financial information private from their children and other family members because that’s traditionally what people do (I understand perfectly why!). It’s good to have all your financial resources identified for your family and any kind of personal knowledge you may have about those financial resources. For example, whether or not you have long-term care insurance or do you have highly appreciated stock that you intended to use to offset your medical expenses or do you have any other institutional knowledge that only you would know about certain types of investments. Those types of things you need to have in writing because they can explain to your financial decision-makers your intent and rationale behind the assets. Also, you can setup and discuss in your incapacity planning your allocation of financial resources, whether you want to use it for certain people. For example, if you want to say that I do not want my financial resources to be used on me, I would like my financial resources transferred over to my spouse for his or her use while I receive care in a nursing home, you could express those wishes in your incapacity planning along with using certain accounts for certain types of things. Those are the main details that people like to cover in their incapacity planning.

Can I Choose More Than One Agent To Hold A Power of Attorney?

You can always choose one or more agents to hold or act as agent under a durable power of attorney. The durable power of attorney can be set up in one of three ways.

One, you can have a line of succession, so one person has the sole authority in final decision-making and sole signature power. Upon that person either saying her or she is unwilling or unable to serve then it’ll default to the next person in line of succession.

A second option is that you can name two or more people who all have independent authority to act on your behalf. For example, if you have three kids then you can say that all three kids can all act independent of each other as your agent under your durable power of attorney. When you have alternative named agents who can each act then that works great when everyone gets along but is a big disaster if there is ever a disagreement. Your situation will likely end up in guardianship court because people will be fighting over your finances in trying to take control over your finances over each other and most people in equal footing may object.

The third way to set up a power of attorney with multiple people is through joint decision-making authority. Joint decision-making authority can be useful when the creator of the power of attorney would like multiple people in on decisions in terms of checks and balances. However, having two people who must jointly act together becomes clunky especially when it comes to a check writing authority and decision authority and especially if those two people disagree or are not in close proximity with each other. It can also be problematic if the named agents under the power of attorney cannot agree on something that could be critical to your financial or medical care. Ultimately, the decision you make should be between you and your attorney and maybe input from your family as well.

For more information on Details In Incapacity Planning, an initial consultation is your next best step. Get the information and legal answers you’re seeking by calling (904) 398-6100 today.

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