Planning for Declining Health
By Aaron R. Miller, Miller Law Firm, Collin County LIVING WELL Magazine
When you first receive a diagnosis of a serious illness, several things flash through your mind––“What is it? Just how serious is it? What is my prognosis? Why me? What do I do next?”
It is easy to become overwhelmed and feel as though you have lost your balance. You worry endlessly about the consequences of forgetting some critical component in your treatment plan. You struggle to understand and cope with the sudden detour your life has taken.
Unfortunately, that nagging feeling that you’ve left something undone may be justified. Have you made sure that your estate planning is up to date?
Few of us are prepared to deal with the emotional, legal, and financial consequences of a serious illness. But anyone recently diagnosed with a serious illness, particularly one involving declining mental or physical health, should have his or her estate plan and health care documents reviewed and updated as soon as possible. Legal documents, such as a will, trust, and advance health care directives, can ensure health care and financial decisions are carried out.
Friends and loved ones are sometimes hesitant about encouraging you to update your estate and financial planning, because they don’t want to seem as though they doubt your recovery. But early planning should be done for two very good reasons: 1) you love your family and want to “put your affairs in order” to avoid dissension and strife and added heartache in the event you become incapacitated; and, 2) you need the peace of knowing that your wishes will be carried out. In a world where you suddenly have little control, imagine the peace of mind that comes from early planning that ensures you still control some aspects of your life.
A complication of some debilitating diseases such as Alzheimer’s, Parkinson’s, or a history of strokes, is that you may lack or lose the ability to think clearly. This change affects your ability to participate meaningfully in decision making and makes early legal and financial planning even more important. These documents must be prepared while you are considered legally competent to execute them.
If you already have an estate plan, but it is more than a few years old, or if you have had changes in your situation such as a divorce, relocation to another state, or death in the family, the documents should be reviewed and updated if necessary.
There are fundamental documents that will communicate your health care wishes if you are no longer able to make health care decisions; and, financial management and estate planning wishes if you are no longer able to make financial decisions.
A Directive to Physicians (Living Will) will record your wishes for medical treatment near the end of life. It can:
• Specify your end of life decisions;
• Specify the extent of life-sustaining treatment and major health care you want;
•If you are terminal, help you die with dignity; and,
• Protect the physician or hospital from liability for carrying out your instructions.
A Medical Power of Attorney designates a person, called an agent, to make health care decisions if you can no longer do so. Depending on your preferences, the agent might be authorized to:
• Refuse or agree to treatments;
• Change health care providers; and,
• Decide about starting or continuing life support (if not specified in a living will).
A HIPPA Release allows health care professionals to share your private health information with a friend or family member designated by you. In 1996, Congress passed a law that protects an individual’s private health care information. Unless you have signed a HIPPA Release, health care professionals are prohibited by law from sharing such information.
An Out of Hospital Do Not Resuscitate (DNR) Order instructs health care professionals not to perform cardiopulmonary resuscitation if your heart stops or if you stop breathing. A DNR order is usually obtained from a doctor and put in a person’s medical chart.
A Will indicates how your assets and estate will be distributed upon death. It can also specify:
• Trusts to manage the estate;
• Funeral and/or burial arrangements; and,
• Arrangements for care of minor children.
A Durable Financial Power of Attorney names someone to make financial decisions if you can no longer do so. It can help people with illnesses and their families avoid court actions that may take away control of financial affairs.
A Living Trust provides instructions about your estate and appoints someone, often referred to as the trustee, to hold title to property and funds for the beneficiaries. The trustee follows these instructions if you can no longer manage your affairs.
A Living Trust can:
• Include a wide range of property;
• Provide a detailed plan for property disposition;
• Avoid probate (in which the courts establish the validity of a will); and,
• State how property should be distributed when the last beneficiary dies and whether the trust should continue to benefit others.
Other Advance Planning Advice
Start discussions early. The rate of decline may be unexpected, and your ability to be involved in planning may be shorter than anticipated.
Gather everything you can about your income, property, investments, insurance, and savings.
Put copies of legal documents and other important papers in one place and tell a trusted family member or friend where you put these papers.
Review plans over time. Changes in personal situations––such as a divorce, relocation, or death in the family––and in-state laws can affect how legal documents are prepared and maintained.
Reduce anxiety about funeral and burial arrangements. Advance planning for the funeral and burial can also provide a sense of peace and reduce anxiety for both you and your family.
Facing declining health can be emotionally wrenching for all concerned. A legal expert can help you and your family address end-of-life issues. Advance health care and financial planning can help those with declining health and their families resolve tough questions about future treatment, caregiving, and legal arrangements.
If you have been diagnosed with a serious illness or are facing issues of declining health, give us a call today at 214-292-4225.