Chapter 1 - Planning Ahead
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You are probably aware of the need to plan for the future by making a will or some other arrangement to handle your affairs after your death. It is just as important to plan for the time in your life when you may be unable to communicate or make responsible decisions about your living arrangements, care and finances.
The law states that a person is incompetent or incapacitated when the person is unable to make or communicate responsible decisions about his or her person or property because of a physical or mental illness or disability.
An illness or disability does not by itself mean that an individual is not able to manage his or her affairs. Even people with mental impairments, such as the effect of a stroke or early Alzheimer’s disease, may still be able to make many of their own decisions.
The time may come, however, when you are no longer competent to make decisions on your own about your life. The time to plan for that possibility is now while you are competent and can stillmake responsible decisions about what you want in the event you become incapacitated. These arrangements will not be legally valid if you sign legal papers after you become incapacitated.
If you become incapacitated without planning ahead, these things may happen:
- A family member or friend may have to go to Probate Court to get appointed as your Guardian or Conservator in order to make decisions for you. You may have little say over who is appointed and what kinds of decisions the Guardian or Conservator can make for you.
- If you are dying or in a coma, the hospital may not know your wishes about how and when you want to die.
- Your bank may not allow your family access to your money to pay for your care and support.
By planning ahead before you become incapacitated, you can determine how your money, property and health care are handled:
- You can choose the person or persons whom you want to take care of your business.
- You can give directions as to what kinds of decisions should be made about your health care, living arrangements, money and property.
- You can continue to handle your own affairs until you become incapacitated and can change the arrangements for any reason prior to that time.
Even if an individual needs some help managing their affairs, his or her problems may not be serious enough to require legal arrangements. For example, if the person is simply forgetful a helping hand may be all that is needed: helping to sort through bills and insurance forms, balancing a checkbook, filling out a tax return, applying for benefits, keeping a doctor's appointment or giving reminders to take medication.
Decisions may be difficult and you can help a person think through problems. Sometimes that may be listing the pros and cons of undergoing surgery or helping that person hire someone to do housework or home repairs. In these situations, it may not be necessary to use any formal legal arrangement.
However, a helping hand may not be enough when a person's problems become more serious and he or she is unable to make important life decisions. A person may neglect financial obligations or a serious health condition and a crisis may result.
If this is the situation, you may now need to make decisions and take care of business for your friend or relative. You may only do so, however, if you have the proper legal authority to act on that person’s behalf. Under Maine law, except in certain circumstances, you do not automatically have the legal right to make decisions for another adult, not even for a spouse.
The following chapters describe the various legal arrangements which enable people who are still of sound mind to plan for incapacity and which enable family members and friends to take care of business for someone who is having difficulty doing so. Remember: these arrangements will not be legally valid if the person signs the documents after he or she becomes incapacitated.
Chapter 2 describes Health Care Advance Directives. These are legal papers signed by a person while still competent which give directions as to how health care decisions should be made for him or her after incapacity. Often, the Health Care Advance Directive names a relative or friend as a decision maker responsible for carrying out the instructions.
Chapter 3 describes Joint Bank Accounts, which allow family and friends access to an older person’s money in order to pay for the person’s needs. Joint ownership of other kinds of property is also discussed.
Chapter 4 describes the Durable Power of Attorney (DPOA) for Finances. In signing this form, a competent person appoints a decision maker to handle financial affairs in the event of incapacity.
Chapter 5 explains the use of a Revocable Living Trust, which allows a person to direct the management and distribution of his or her property when he or she becomes incapacitated or dies.
Many families find that an older person, now incapacitated, did not plan ahead. These family members may need to apply to a Court or government agency to become appointed Representative Payee,Guardian or Conservator. These arrangements are described in Chapters 6 and 7.
Finally, Chapter 8, “Resources,” is a list of places you can go to for help and information.