One of the aspects of elder law that is moving to the forefront of the consciousness of many estate planning attorneys is that of incapacity planning. When you examine the dominant trends you see a confluence of two major factors that make incapacity planning totally essential to the modern estate plan.
For one thing, the elder population is growing and people are living longer than ever. Some 10,000 people are filing for Social Security every day, and the segment of American society that is at least 85 years of age is growing faster than any other. This is the first fact to keep in mind.
The second factor to consider is the high rate of dementia cases among the oldest old. It is estimated that about 50% of people who have reached the age of 85 are suffering from dementia. Dementia can strike with varying degrees of severity, but it is very common for dementia sufferers to become unable to make sound financial and medical decisions for themselves.
If you do not take the appropriate steps to appoint decision makers of your own choosing to act in your behalf in the event of your incapacitation, the state can appoint a guardian to act in your behalf without your consent.
The way that estate planning attorneys can help you avoid this would be to include durable powers of attorney in your estate plan. In this context the “durable” designation makes the document valid even after the incapacitation of the principal.
Most plans will include a durable medical power of attorney and a durable financial power of attorney to address each of these separate areas of decision making. Since the the person who is best suited to handle your finances may differ from your preferred medical decision maker you can indeed name two different attorneys-in-fact in the two respective documents.
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