It can be hard to imagine a time when you will not be able to make decisions for yourself. Unfortunately, this is something that a lot of elders experience. About one third of people that are at least 85 have Alzheimer’s disease, and this is not the only cause of dementia.
Of course, there are other conditions that can cause incapacity in other forms. Once you reach the age of 67, your life expectancy is at least 85 years, so this is something that everyone should take seriously.
Obviously, this is not a pleasant subject to think about, but aging is part of life. There is no way to get around it, so the best thing you can do is plan for possible incapacity in a practical way.
Mandates, Powers of Attorney, and Advance Directives for Health Care
Your overall estate plan should include legal tools that address this threat. Advance health care directives will be part of the plan, and one of them is a healthcare proxy.
Louisiana has a standard Advance Directive form (sometimes called a “Living Will”) that may be freely available at many health care providers. This form allows you to state your position about being kept on life-support and to designate a representative to make the decision on whether to withhold or continue with life-support.
Our experience is that while the Advance Directive gives your designated representative the ability to make life-support decisions, it does not give them any guidance as to your feelings on when it would be appropriate to remove you from life-support. The standard Louisiana Advance Directive does not address any issues besides life-support so we believe a Health Care Mandate (commonly called a Power of Attorney) is a better planning tool.
A comprehensive Health Care Power of Attorney covers issues such as selection of physicians, hospitals or nursing homes, approving medical procedures, and a large range of health-related questions. A comprehensive Health Care Power of Attorney should also address long-term care issues and should designate a person who can deal with Medicare, Medicaid, health insurance and other ways of getting payment for medical expenses. A comprehensive Health Care Power of Attorney should also address HIPPA matters and designate who can obtain copies of your medical records.
If the question of life-support arises and you do not have a Health Care Power of Attorney or, at minimum, an Advance Directive, then your closest living relatives would have to make some extremely difficult choice on your behalf. This is such a complicated decision to make for someone else, and it is not fair to put anyone in this position.
More importantly, you probably have your own ideas about life-support, so you should make sure that you record them in a Health Care Power of Attorney or at least use an Advance Directive. This can take the emotion out of the decision because you have already chosen when to terminate your life-support.
In addition to the medical documents, your incapacity plan should address financial decision-making. In Louisiana, there are three common tools available for designating who will manage your finances if you become unable to manager your own affairs. One tool is a Mandate (commonly called a “Power of Attorney” because that is the term used in other states). Another tool for designated someone to manage your finances when you can no longer handle is a Trust. In some situations, Louisiana lawyers also use Limited Liability Companies as a tool for managing finances. When you understand the advantages and disadvantages of each of these tools, you may decide to use a Trust or an LLC to as the centerpiece of your estate plan, possibly, decide on a plan that include multiple tools to create a seamless blanket of protection. Although placing your assets in a Trust or an LLC is more expensive and more complicated than just signing a Power of Attorney, these tools have advantages that cannot be achieved with a Power or Attorney.
If you use a revocable Trust as the centerpiece of your estate plan, you can name an alternate trustee to take over managing the trust property if your or your spouse can no longer serve as trustees. Similarly, assets placed in an LLC can be administered by a designated alternate manager if you become unable to manage the company yourself. Although Trusts and LLCs can provide more complete and more defined management than a Power of Attorney, they are complicated instruments and involve tax issues and other issues. The South Louisiana Elder Law team can help you navigate these issues and make decisions and choices about which estate planning instruments are best for your situation.
Caregiver Support Resources
A lot of people take care of their aging parents, and some of them are actively parenting children at the same time. These folks are part of the “sandwich generation,” and it is pretty hard to juggle these important responsibilities.
Whether your children are grown or not, care giving can be draining emotionally and physically. At some point, they may you need a level of care that you simply cannot provide by yourself.
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We got into the elder law field because we sincerely care about the well-being of our neighbors and their families. It is rewarding to be there for people when they need sound advice, and we know exactly how to help you prepare yourself these difficult situations.