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Q: When should planning for incapacity be done and can it prevent elder abuse?

Planning for incapacity is an important part of New York and New Jersey estate planning.

In addition to a last will and testament (a.k.a. a “will”) and/or trust documents which deal with transferring your property to intended beneficiaries upon your death, a comprehensive estate plan includes other documents that may impact your estate while you are still living.

While death is certain and incapacity is not, the reality is that many of us will become either temporarily or permanently disabled at some point in our lives through illness, accident, injury, or age. Disability may impact our ability to handle our own financial and/or healthcare decisions. With that in mind, there are planning for incapacity documents typically included in an estate plan to cover you in the event you’re unable to make decisions on your own behalf.

A durable power of attorney is a document that enables you to pick a trusted family member, friend, or financial advisor to handle your financial matters. You can choose to make it effective immediately or to have it “spring” into action only if you become incapacitated in the future. You can make the power limited to certain and specific functions or make it unlimited.

In addition, a healthcare proxy is similar to a durable power of attorney in that it allows you to appoint a trusted person to make decisions on your behalf when you are unable to do so—but it’s for healthcare matters instead of financial ones.

In addition, there is a living will document which allows you to precisely spell out the kinds of end-of-life healthcare decisions you would like followed if you are not in a position to state them at that time. A living will covers such topics as “Do Not Resuscitate (“DNR”) orders, artificial respiration, feeding tubes and hydration, pain-relieving medications, and more.

Provided the agents appointed by you are in fact trustworthy and operate in your best interests, these documents can collectively provide a great level of protection against some kinds of elder abuse. Elders in a vulnerable state can be unduly influenced or become victims of financial predators.

Marvel Comics legend, Stan Lee–the man responsible for creating such superheroes as Spiderman and others–is a 95-year-old now in the center of an investigation over whether his caregivers or others are unduly influencing and/or isolating him.

A lawyer acting as his guardian-ad-litem reportedly advised the court that Mr. Lee is worth “more than $50 million” and due to “hearing, vision and memory impairments… [and being] unable to resist undue influence” he would be vulnerable to financial elder abuse. The court reportedly issued a temporary restraining order against a reputed memorabilia collector who claimed to be Mr. Lee’s caregiver barring the man from “abusing, harassing, or contacting Mr. Lee”.

It’s important to note that durable powers of attorney and other legal documents must be executed while the maker is mentally competent. Once the person’s mental capacity has diminished significantly either from Alzheimer’s, dementia, or other conditions, it may be too late.

In such cases, someone would have to petition the court to appoint a guardian for the vulnerable person. The process for guardianship is more expensive and time-consuming and, importantly, may result in the court appointing someone to manage the person’s affairs that they would not have chosen or who they might not even know.

If you need assistance with an initial estate plan, would like to modify an existing estate plan, or have questions regarding elder law, Merlino & Gonzalez can help you. Contact us today for a consultation.

From our offices in Staten Island, New York and East Brunswick, New Jersey, we represent clients throughout New York and New Jersey in all aspects of estate planning and real estate law.