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An Ohio Elder Law Attorney Explains 5 Facts about Incapacity Planning

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We don’t find it easy to contemplate our own mortality or think about the possibility of becoming incapacitated. Still, it’s better to have a plan in place and not have to use it than to have no plan in place and have our future health care decisions and assets in limbo.

Having an elder care lawyer to help us through the process of incapacity planning is essential. With that said, if you Google “elder law attorney near me,” you’ll get inundated with results, many of which will not be a good fit for you.

At Jarvis Law Office, P.C., we possess the skill and experience to help you with incapacity planning in Ohio. Let’s take a look at five facts about incapacity planning so that you can prepare yourself for what may come.

1. Incapacity Planning Has Many Factors

You don’t need a complicated incapacity plan to protect your properties and assets and ensure a promising future for your beneficiaries and yourself. With that said, a comprehensive plan can prevent many of the financial and legal issues that you might run into without that kind of protection.

Incapacity planning involves many estate planning documents, and it can include things like a:

    • Living will
    • Do-not-resuscitate order
    • Healthcare power of attorney
    • HIPAA release form
    • Durable power of attorney
    • Revocable living trust
    • Asset Protection Trust
    • Personalized Plan for Care

Your individual needs will dictate the makeup of your specific incapacity plan, but an elder law attorney will walk you through each step and help with the particulars of your plan.

2. Making a Plan Will Actually Save You Money Down the Line

Your first instinct might be to wince at the potential cost of drafting an incapacity plan, but the truth is that making an incapacity plan will actually save you more money farther along as opposed to not having a plan in place. The truth is that not having a plan for incapacity could cost you everything you have and take control away from those that you would want to step in to make decisions on your behalf.

While you will incur a fee for putting together a plan, you should also consider all that you will save by having that plan. For example, if you were incapacitated and not able to pay your bills on time, you could incur penalties, interest and fees or even have to deal with repossession. Worse yet, decision-making could be handed over to a complete stranger who knows nothing about you and your preferences, your likes and dislikes, or who and what is important to you.

If a guardianship were needed, there would be significant fees and ongoing court involvement. This process is not just costly, but also often slow moving and takes much time and patience on behalf of your loved ones. If you later recovered and wanted to take back control, you would have to go through another court process to undo the guardianship and be deemed competent to make your own decisions in the future.

While planning ahead does include a fee for putting a plan in place. Reacting to a crisis, in the absence of a plan, is far more costly in terms of time, money, mental strain and emotional anguish. .

An incapacity plan will not only save time and money, it will also save your family much of the stress, anxiety, frustration, trauma and drama that comes with having no recourse and no clear direction.

By working with an elder care lawyer, you can have a plan that can flex with your needs and involve only the people that you would choose. Your plan can provide your future decision makers, should you ever need them, instructions to follow in multiple scenarios, so that you can rest assured that your wishes will be carried out regardless of what the future holds.

3. If You Don’t Make an Incapacity Plan, Someone Else Will Do It for You

The adage applies: Ignoring the problem won’t make it go away. Those who don’t have an incapacity plan in place will have one drawn up for them. The court and lawyers will likely be involved in a guardianship process if you become incapacitated and do not already have a plan in place. If you have a spouse or adult children, they may be deemed worthy of making decisions for you by the court, but they may not be if the court feels that they should have been more proactive on your behalf.

What might incapacity look like? Incapacity can happen in a number of ways. While most of us assume our incapacity might result from Alzheimer’s or dementia, as is often the case, and will continue to be a concern in the future due to the rising rates of these illnesses. However, incapacity can also result from a stroke, oxygen deprivation (due to a coronary event or other cause), brain injury due to a car accident or fall, nutritional deprivation, extended alcohol or substance use/abuse, as a side effect of some medications, as a long term effect of trauma, pain, certain mental health issues or many other causes.

Without a plan for incapacity, your spouse could pay a severe price in loss of assets and household income if they can no longer care for you in the home. If your spouse or children are deemed to have improperly handled your assets in the years leading up to you needing care, there could be a high price to pay if Medicaid will not step in and pay for your care.

The state may make adverse decisions on benefits eligibility, and nursing facilities could deny you entry leaving your children to figure out how to care for you while trying to work and manage their own lives. By drawing up an incapacity plan before you need it, you’ll avoid much confusion and cost. You’ll also have the peace of mind that you won’t be a burden on your spouse or children.

4. Incapacity Plans Prevent Others from Taking Advantage of You

Many older adults avoid incapacity planning because they worry that such a plan might allow someone to take advantage of them when they’re unable to defend themselves. This is not the case, and the opposite is actually true. Incapacity plans prevent others from taking advantage of you.

When you create an incapacity plan, you appoint who will make health care and financial & legal decisions on your behalf. You can even split up that power among multiple people for different types of decisions, such as having one power of attorney for medical decisions and another for financial ones. An elder law attorney can help put this together for you.

It’s very common for elder care attorneys to help their clients designate co-representatives who each have some of the decision-making power in the event of incapacitation. You can even set up specific provisions in your plan that spell out what you want done in various situations so that your agent will follow your directives even if events change significantly in the future.

We’ve all heard about myriad scams aimed at exploiting seniors these days. Today’s scam artists are highly skilled and employ myriad tactics to take advantage of individuals of all ages, but tend to focus on the most trusting and conscientious individuals: older adults.

Elder law attorneys can incorporate layers of protection into your planning to help “scam proof” you and your assets. This is done by incorporating two or more “key-holders” in your plan.

5. A Power of Attorney Is Not a Lawyer

Despite the name, a power of attorney is not a lawyer. Granting power of attorney is designating another person to have equal decision-making power over some aspect of your life. This can occur right now, or it can occur in the future, if you should be unable to make your own decisions. It can be temporary or permanent, depending upon the situation.

The single most important thing you can do is enlist an elder law attorney in helping you identify who are likely to be the best candidates for this important role in your circle of family and trusted individuals, and help you design “the plan” that works for you.

For an Experienced Ohio Elder Care Law Firm, Contact Jarvis Law Office, P.C.

Plan ahead. For advice on elder care planning for yourself or a loved one in Ohio, speak to the professionals at Jarvis Law Office, P.C. Contact us today to see if you qualify for a free or no-cost consultation. We can video-chat with you or meet at one of our office locations: Lancaster (740) 653-3450, Dublin (614) 495-4185, or St. Clairsville (740) 699-2193.

We also provide in-person workshops and live webinars each month for free as a service to the great people of Ohio. Join us as we discuss topics of interest to you.

Copyright © 2022. Jarvis Law Office, P.C. All rights reserved.

The information in this blog post (“post”) is provided for general informational purposes only and may not reflect the current law in your jurisdiction. No information in this post should be construed as legal advice from the individual author or the law firm, nor is it intended to be a substitute for legal counsel on any subject matter. No reader of this post should act or refrain from acting based on any information included in or accessible through this post without seeking the appropriate legal or other professional advice on the particular facts and circumstances at issue from a lawyer licensed in the recipient’s state, country or other appropriate licensing jurisdiction.

Jarvis Law Office, P.C.
904 N. Columbus Street
Lancaster, OH 43130
(740) 653-3450