Incapacity Planning

Relevant Aging Statistics

According to the United States Census Bureau, the oldest segment of the population is growing faster than any other. If you wake up one morning and celebrate your 67th birthday, your life expectancy is 85 years for a man, and 87 for a woman. It can be hard to wrap your head around the concept of life as an octogenarian, but the statistics don’t lie.

Alzheimer’s Disease

The Alzheimer’s Association provides assistance for people that are touched by the disease. It is a fantastic resource, and in addition to the hands-on help, they have some very useful research posted on their website. They have found that approximately 13% of all seniors have Alzheimer’s, and this figure rises to 40% for elders that are 85 and older.As we all know, Alzheimer’s causes dementia, and people that are living with this condition are going to become unable to make sound decisions on their own. Of course, this is not the only cause of incapacity among elders. When you combine all the facts, you can see why incapacity planning is recommended by elder law and estate planning attorneys.

Adult Guardianship

If you do not take the right steps in advance to prepare for incapacity, interested parties could petition the court to appoint a guardian to act on your behalf. The Illinois Probate Act, which went into effect in 1979, sets forth the parameters. Our state takes a unique approach to the matter of guardianship, and the court carefully assesses all relevant factors. In essence, there are two different fundamental types of guardianship in Illinois: person guardianship, and estate guardianship. Generally speaking, a guardian of the person would make personal decisions on behalf of the ward, and the guardian of the estate would be a financial representative.

The court custom crafts the nature of the guardianship arrangement based on the circumstances. A limited guardian could be empowered to make certain types of decisions that are specified by the court. If sweeping decision-making authority is required, the court would appoint a plenary guardian.A guardianship proceeding can provide a solution under difficult circumstances, but there are some drawbacks to take into consideration. The proceeding can be time-consuming, and everyone in the family may not be on the same page with regard to the right way to proceed. Plus, most people would prefer to choose their own decision-makers in advance. When it is left up to the court, the guardian that is chosen may not be someone that would have been selected by the incapacitated individual.

Advance Directives for Health Care

An incapacity plan will include documents that fall under the umbrella of advance directives for health care. One of them is a living will. This is a device that is executed to state your wishes regarding the utilization of artificial life-sustaining measures when there is no hope of recovery.When you have a living will in place, loved ones would not be forced to make this excruciating decision. More importantly, you can be certain that your own true wishes will be carried out if you are ever in that situation.

In many instances, medical decisions can present themselves that have nothing to do with life-support matters. To account for this, you can include another advance directive called a durable power of attorney for health care or health care proxy. The agent that you choose would be empowered to make medical decisions on your behalf in the event of your incapacity.Under federal laws, the medical community cannot release records to anyone without the patient’s approval. As a response, you should include a HIPAA release form that would give your health care agent access to relevant health care records.

Financial Decision Making

Your incapacity plan can be completed through the execution of a durable financial power of attorney. This would give the attorney-in-fact that you name in the document the ability to manage your financial affairs if you become unable to do so on your own.

Contact Garofalo Law Group

If you would like to schedule a free consultation, contact us to request an appointment or give us a call at (312) 753-6000.