The “Big 3” and the Dreaded “D” Protecting Your Loved Ones Upon your Disability

By: Estate and Elder Law Services

Advances in the medical field have allowed us to enjoy longer and (hopefully) more fulfilling lives. In fact, over the past twenty years, the number of deaths due to the “big three” (cancer, heart attack and stroke) have decreased significantly. But disabilities caused by the “big three” have increased dramatically. The things that used to kill, now disable.

NHS Scotland Photo Library Nurses doing paper work and administration in the new Victoria Hospital in Glasgow. Occupational Therapist and patient. Physiotherapist helping and old lady patient with her rehabilitation. © Picture by John Young /

Depending on your age and family situation, you should take steps to protect your family from the costs of your potential disability. If you are a wage earner, you should plan for income replacement if you can no longer work. If you are an elderly person, you should consider taking steps to protect your assets from the costs of long term care. No matter what your age, however, you should have documents in place that will allow for a transition of control over your medical decisions and financial transactions upon your disability and legal incapacity.

A person is deemed incapacitated when he or she cannot physically or mentally do something or manage his or her own affairs. A person can be physically incapacitated if he or she is in the hospital and cannot go to the bank to cash a check. A person can also be physically incapacitated if he or she cannot speak to provide consent to a medical procedure. A person can be mentally incapacitated if they have an illness or condition that causes confusion or lapses in memory, such as dementia or Alzheimer’s disease. Incapacity can be brought on by an injury, disease or illness, can can be devastating for a family.

Typically, if someone is incapacitated, he or she cannot make financial decisions or enter into financial transactions. Who will pay the bills? Who will file taxes? A Durable Power of Attorney provides a transition of control over a person’s finances in the event he or she becomes incapacitated. The person who signs the Power of Attorney is known as the “Principal,” and the Principal appoints an “Agent” to take over financial matters upon incapacity. Typically, a married person will appoint his or her spouse as the primary agent, and then will also name a backup agent in the event the spouse is unable to serve. However, if an incapacitated person does not have a Power of Attorney in place, then the Chancery Court will appoint a legal guardian who will take over the incapacitated person’s finances. This is a long, expensive and often emotionally taxing process. The incapacitated person has no control over whom will be appointed as legal guardian. Additionally, if a person regains legal capacity, he or she will need to take steps to terminate the legal guardianship, the decision for which will be made by the Court.

An incapacitated person typically cannot make medical decisions or provide consent for medical treatment. A Healthcare Power of Attorney is a document that transitions control of medical decisions from an incapacitated person to an agent. The person who signs the Healthcare Power of Attorney is once again known as the “Principal”. The agent appointed by the Principal may make medical decisions and provide consent to medical treatment at times when the Principal is unable. When a Principal signs a Healthcare Power of Attorney, he has the opportunity to list his physicians, allergies and preferences when receiving medical treatment. Additionally, a Principal can also sign a Living Will, under which he will state his wishes in an end of life scenario. Again, if an incapacitated person does not have a Healthcare Power of Attorney in place, a guardianship will likely be necessary. In this instance, once again, the Court will decide whom will serve as guardian.

Many people think of Estate Planning as a way to plan what happens at the time they pass away. However, by signing a Durable Power of Attorney and Healthcare Power of Attorney as part of your Estate Planning documents, you can plan what will happen when you are still living, but unable to act on your own behalf. The attorneys at Estate and Elder Law Services have been assisting clients in creating Powers of Attorney for decades. Call us today to discuss these very important documents