How Do I Prepare for Incapacity? www.germanlawgroup.com

1

1

HOW DO I PREPARE FOR INCAPACITY?

“It is not a very pleasant subject to contemplate, but if you think about the circumstances that you may face toward the end of your life, incapacity is a very real possibility.”

How Do I Prepare for Incapacity? www.germanlawgroup.com

2

2

When you think about estate planning, you are naturally going to consider the

way that assets will be transferred after you pass away. Arranging for

postmortem asset transfers is certainly at the core of the estate planning

process, but there are some other things to take into consideration if you want

to be comprehensively prepared.

It is not a very pleasant subject to contemplate, but if you think about the

circumstances that you may face toward the end of your life, incapacity is a very

real possibility. There are people who become unable to communicate at all due

to serious physical conditions, and this is part of the equation.

How Do I Prepare for Incapacity? www.germanlawgroup.com

3

3

There is also the matter of mental incapacitation and the ubiquitous nature of

Alzheimer's disease. Everyone has heard of this disease, but you may be

surprised when you hear some of the statistics.

The Alzheimer's Association is a great source of information about this horrible

disease, and you should certainly explore their site if you are concerned about

the eventualities of aging. According to their research, somewhere in the vicinity

of 45 percent of people who have reached the age of 85 are suffering from this

disease.

If you are thinking that you will probably never reach such an advanced age, you

should understand the facts. The United States Census Bureau tells us that the

segment of the population that was between 85 and 94 years of age grew faster

than any other age group during the 10 year interval between the last two

censuses.

The Social Security Administration has a life expectancy calculator on its website.

If you use this tool, you will find that a person who is turning 67 on this day will

probably live until he or she is at least 85 years of age.

When you digest these longevity statistics, you can see that Alzheimer's looms

large for all of us. You are probably aware of the fact that Alzheimer's disease

causes dementia. People with dementia are typically going to become unable to

make sound decisions on their own.

How Do I Prepare for Incapacity? www.germanlawgroup.com

4

4

GUARDIANSHIP

The state could be petitioned to appoint

a guardian to manage your affairs if

you fail to make preparations for

possible latter life incapacity. You would

become a ward of the state if the court

determined that you were in fact

unable to handle your own affairs.

You would not have the final say with

regard to the person who represents

you, and family members could have

disagreements with regard to the

appropriate course of action. Though

guardianship proceedings serve a

purpose, the outcome can be less than

ideal.

INCAPACITY PLANNING

To avoid a guardianship proceeding, you could be proactive about the

implementation of an incapacity plan when you are devising your long-term plan

for aging. One document that would be part of the equation would be a durable

power of attorney for health care or health care proxy.

How Do I Prepare for Incapacity? www.germanlawgroup.com

5

5

With this document, you name someone to make medical decisions on your

behalf in the event of your incapacitation.

A durable power of attorney is an advance directive for health care. Another

advance directive that should be part of any incapacity plan is a living will. This

type of will does not apply to monetary matters. You would use a living will to

state your wishes with regard to the utilization of life-sustaining measures like

feeding tubes, artificial hydration, and mechanical respiration.

To account for financial decision-making, you could add a durable financial

power of attorney to name a financial representative. If you were to use a living

How Do I Prepare for Incapacity? www.germanlawgroup.com

6

6

trust as the centerpiece of your estate plan, you could empower a disability

trustee to administer the trust if you ever become incapacitated.

SUMMARY

Every well constructed estate plan will include an incapacity planning component.

Many elders become unable to communicate sound decisions late in their lives,

and you should certainly prepare for this eventuality in advance.

You can use durable powers of attorney to name people to act on your behalf in

a legally binding manner if it ever becomes necessary, and you can record your

life support preferences through the inclusion of a living will.

If you are currently unprepared, contact an estate planning attorney. Your

lawyer will gain an understanding of your unique personal situation and help you

put a comprehensive plan in place.

REFERENCES

Mayo Clinic http://www.mayoclinic.org/healthy-lifestyle/consumer-health/in-depth/living-wills/art-20046303 Alzheimer's Association http://alz.org American Bar Association http://www.americanbar.org/content/newsletter/publications/law_trends_news_practice_area_e_newsletter_home/durablepowerofattorney.html

How Do I Prepare for Incapacity? www.germanlawgroup.com

7

7

About the Author

Raymond J. German

As an attorney in Minnesota and North Dakota,

Raymond J. German provides a wide range of estate

planning services to his clients, with a primary focus on

helping them provide for the security of their loved

ones, reduce estate taxes and avoid or at least

minimize the costs and delays of probate, all with a

well-crafted estate plan. Mr. German defines the

mission statement for German Law Group, PC, as

"Helping one family at a time pass on values, beliefs

and finances, which can be shared for generations to

come." Mr. German is well aware of the growing importance of estate planning

and dedicates himself to informing the public of the need for careful attention to

their specific situations. He is a frequent speaker on a variety of estate planning

topics, regularly presenting educational seminars for the public as well as private

groups.

Raymond J. German approaches each challenge with not just solid expertise, but

also remarkable enthusiasm and vigor. By constantly seeking simpler, better, and

more effective ways of doing things, he continues to make a real difference in

the lives of families and on the way estate planning is practiced by attorneys

around the country.

German Law Group, PC

www.GermanLawGroup.com

GRAND FORKS

2650 32nd Avenue South, Suite O

Grand Forks, ND 58201

Phone: (701) 738-0060

Toll Free: (800) 774-7576

Fax: (701) 738-0064