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Planning for Incapacity – Will Your Plan Work?

by Joyce Koria Hayes, Esquire

What would you do in the case of a sudden incapacity, for instance caused by a stroke, car accident or illness? Who is available to help? Is your home suitable or can it be made suitable if you become physically impaired? The Legal Handbook for Older Delawareans recommends that every adult (and particularly older adults) have in place certain documents in case of a sudden incapacity. Those documents are:

An advance health-care directive (AHCD) or a durable power of attorney for health care. This document names someone to speak on your behalf and sets forth your wishes for treatment in the event you’re not able to speak for yourself. If you are in a coma or a vegetative state, do you wish to have a feeding tube? Do you want all measures taken to preserve life, or only to alleviate pain?

You’ll need to make sure that the person named as your agent is willing to serve, but more importantly, you’ll need to be sure that they will act in accord with your wishes. You might also discuss your plans with others in the family so that they know who has the authority and what you have instructed them to do. Without an AHCD, you leave your family to make impossibly difficult decisions.

You also invite the scenario where one sibling is chosen and another is upset or angry that they were not chosen as agent.

A durable personal power of attorney designates an agent to act on your behalf with respect to financial matters. Again, ensure that the person you designate as agent is willing to serve. Talk to them about your wishes. And again, talk to other members of the family to make sure they understand who was chosen and what their duties are. You also might specify if the agent is to take sibling suggestions into account. Will the agent have a duty to provide siblings with monthly bank statements? A lack of knowledge can lead to distrust; disclosure prevents that possibility. Consider your children’s relationship. Are they cooperative, or has their relationship been characterized by arguments and competitiveness? Will they be able to cooperate in the future or would a third party agent be preferable? These are difficult decisions, but preferable to loved ones having to go to court to obtain a guardianship, which can be quite expensive and involves some delay.

A will outlines your wishes for the disposition of your property upon your death and names your Executor. The Executor is responsible for seeing that your final expenses are paid and your assets disposed of in accordance with your will. Because the Executor of your will must adhere to your wishes, there is less opportunity for siblings to question the actions of the Executor. Nevertheless, make sure that your Executor is willing to serve and that your family knows whom you have designated to be Executor.

Joyce Koria Hayes, Esq., is the Executive Director, Secretary and Mediator at Delaware Elder Mediation Services, Inc.

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