• • How common is incapacity among elders?

• • This is obviously not a subject that many people want to address, but the answer to this question is something that everyone should process. It can be difficult to envision yourself as an 85-year-old person, but that is your life expectancy if you are fortunate enough to celebrate your 67^th birthday. The oldest segment of the population is growing more rapidly than any other, so you may well experience life as an octogenarian. As you get older, the likelihood of contracting Alzheimer’s disease increases. According to the Alzheimer’s Association, it strikes approximately 40% of people that are 85 years of age and older. Clearly, folks with this disease are not going to be able to make sound decisions on their own at some point in time. When you add in the fact that there are many other causes of incapacity, you can see why prudent individuals should address this eventuality.

• • What happens if you become incapacitated without planning for it in advance?

• • The state could be petitioned to appoint a guardian to act on your behalf. This is a necessary remedy, but do you really want the government to choose the person that will represent you? You would be able to provide your own input to the extent that you were capable of doing so, and New York laws are very sensitive when it comes to the matter of adult guardianship. However, at the end of the day, the court would make the final decision. Another drawback of a guardianship is the potential for disagreements among family members with regard to the person that should act as your representative.

• • Who would act as my living trust administrator if I was incapacitated?

• • One of the benefits of a living trust is the ability to account for incapacity. When you are establishing the trust declaration, you could empower a person or entity to act as a disability trustee in the event of your incapacitation.

• • What about property that is not in the trust?

• • To account for this, you could include a durable power of attorney for property as part of your incapacity plan. The agent that you choose would be able to manage property that is not in the trust. It could be the disability trustee, and this would provide a streamlined solution, but it is not a legal requirement.

• • Are there any other incapacity planning documents that should be included?

• • Health care decision-making should be taken into account, and this is done through the utilization of advance directives for health care. A living will is a directive that you use to state your preferences regarding the use of artificial life-sustaining measures. Another part of the plan would be a health care proxy or durable power of attorney for health care. This would be used to empower an agent to make medical decisions on your behalf that are not specifically related to the utilization of life support. In order for the agent to act in an informed manner, you have to allow medical professionals to release your records to your representative. This is done through the execution of a HIPAA release form.

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We would be more than glad to help if you would like to include an incapacity plan within a broader, personalized estate plan. When you have all of your bases covered, you can go forward with total peace of mind and hope for the best.

You can schedule a consultation right now if you give us a call at 585-374-5210. There is also a contact form on this website that you can use if you would like to send us a message.