Call Us Now
Email Us Now
Most people understand that dementia can happen to anyone, but when it strikes someone we know, or feel as if we know, the diagnosis hits especially hard. It’s even worse when someone we perceive as young and tough (even unbreakable) receives this life-changing diagnosis. Unfortunately, that’s exactly what has happened to actor Bruce Willis. Bruce Willis’ aphasia, diagnosed in 2022, has now progressed to a diagnosis of frontotemporal dementia.
During his career, Willis, now 67, played a variety of roles, but is best known for playing wisecracking tough guys. In some ways, that makes it even crueler that he has been stricken with a disorder that robs him of language abilities and makes him so vulnerable. When you see someone who has always seemed strong suffering from dementia, it’s natural to wonder, “If it can happen to them, could it happen to me?”
As difficult as it is to think about, the answer, of course, is yes. And while there are things we can all do to maintain brain health, it’s equally important to think about incapacity planning while there is still time.
Incapacity Planning
Even people who understand the wisdom of planning for incapacity may imagine that the need is far off in the future. As Bruce Willis’ situation highlights, however, dementia is not something that only happens to the elderly. He was in his mid-sixties when diagnosed; Robin Williams, who died at 64, was discovered after his death to have Lewy Body Dementia (LBD). These are just the famous people whose difficulties we know about; millions of others throughout the world suffer from various forms of dementia.
And, of course, Alzheimer’s disease and other dementias are not the only causes of legal incapacity. An accident or a sudden illness, like a stroke, can instantly render someone incapable of making decisions or managing their affairs. As you can imagine, that leads to double devastation for the patient’s family, who must deal not only with the patient’s medical condition, but the need to gain legal authority to act on their behalf.
Nothing can blunt the pain of learning that a family member has received a serious diagnosis, but you can at least offer your loved ones some peace of mind by putting in place incapacity planning documents. Establishing an incapacity plan means that if you become unable to make important decisions for yourself or take care of your finances and needs, someone you have chosen can easily step in to do those things for you.
What Incapacity Planning Documents Do You Need?
Most estate planning attorneys would agree that there are certain “core” incapacity planning documents that everyone should have. These documents allow you to designate someone you trust to make important decisions for you and manage your finances so that you can live the fullest possible life in accordance with your values. It’s not enough just to have family members who are willing to do this; they have to have the legal authority, and that’s what your incapacity plan gives them. The documents in your plan should include:
Durable Financial Power of Attorney
A financial power of attorney gives your chosen agent the authority to transact financial business on your behalf: pay bills, deposit money into your bank account or withdraw it, and enter into contracts for goods or services that you need. It is essential that the power of attorney be “durable,” which means that the permission you grant your agent survives your incapacity.
A durable financial power of attorney is often “springing,” meaning that it doesn’t take effect unless and until the principal becomes incapacitated. In other words, if you never actually become incapacitated, your chosen agent never takes control of your finances.
Designation of Patient Advocate (Medical Power of Attorney or Health Care Proxy)
If you are legally incapable of transacting your own financial business, it’s likely that you are also incapable of making, and perhaps expressing, your wishes for medical care. In Michigan, a medical power of attorney is referred to as a “designation of patient advocate.” In designating a patient advocate, you not only grant that person the authority to make medical decisions for you, but provide them the guidance they need to do so.
The patient advocate designation allows you to give both general and specific instructions for your care, including allowing your patient advocate to make mental health treatment decisions for you. You can specify objections to certain types of care based on your religious beliefs. You can indicate your wishes to receive, or not receive, certain life-sustaining treatments. You can also specify your preferences regarding organ donation.
There are other documents, such as living trusts, HIPAA authorizations, and “Do Not Resuscitate” orders that may become part of your incapacity planning, but the two documents listed above form the core of your incapacity plan.
Imagine that you have a loved one who has become able to care for themselves. Now imagine that you are attempting to pay their bills and arrange care for them but that providers will not deal with you because you are not legally authorized to act on your loved one’s behalf. If you want to spare your loved ones that pain and frustration, make it a priority to create an incapacity plan.
What Happens if You Don’t Have an Incapacity Plan?
We understand: confronting the prospect of your own incapacity is a very uncomfortable process. Unfortunately, failing to plan for incapacity doesn’t eliminate the discomfort; it just magnifies it and shifts it to the people you love.
If you don’t do incapacity planning and you become incapacitated, your loved ones will need to go to court to get guardianship over you, and conservatorship over your finances. This process, sometimes referred to as “lifetime probate,” can be stressful and time-consuming at a time when your family would prefer to focus their attention on you. In addition, lifetime probate can result in someone that you would not have chosen being in charge of your finances, healthcare, and personal decisions. If you want input into decisions that affect you, speaking to an experienced estate planning attorney about incapacity planning is a must.
To learn more about protecting yourself and your family in the event of incapacity, contact Estate Planning & Elder Law Services to schedule a consultation.
