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Planning for Mental Incapacity Can Avoid Adult Guardianship

A Love One Holds The Hand Of An Elderly Woman.

Updated December 20, 2020

We plan for all sorts of contingencies in life: We purchase health insurance to protect ourselves from the high costs of health care. We build fences around our homes to keep out unwanted intruders. We wear a helmet when riding a bike to avoid damage to our head in case of an accident.

But how many people do you know who have prepared to lose their mental capacity? It can happen at any time. A freak accident when we are young. The onset of dementia. But we can prepare for the possibility of losing mental capacity, and smooth the transition and burden on our loved ones, with simple steps. A common method of accomplishing this is through the use of “advance directives”. The most common types of advance directives are durable powers of attorney, health care proxies, and living wills.

Advance directives are the most effective way to avoid adult guardianship. Take it from me, an adult guardianship attorney, that even though advance directives aren’t 100% failsafe, they’re worth having for most people.

Durable Power of Attorney

A Durable Power of Attorney is a document created by an adult (the “principal”) to another adult, (known as an “agent”), to make financial decisions and to control resources on behalf of the principal in the event the principal becomes incapacitated and unable to manage his or her property. A Power of Attorney should almost always be prepared with the assistance of counsel. It is a powerful document that can be subject to abuse if not planned for carefully.

Health Care Proxy

A Health Care Proxy is a document created by an adult (the “principal”) to another adult, (known as a health care “agent”), to make health care decisions on behalf of the principal in the event the principal becomes mentally incapacitated and unable to make health care decisions. Once the Health Care Proxy takes effect, the health care agent will also have access to protected, private health information. If one loses capacity, but does not have a Health Care Proxy, a family member or friend will be designated as the health care “surrogate” pursuant to statute.

Living Will

A Living Will is a written statement that makes one’s wishes regarding medical treatment known to his or her health care agent or health care surrogate. The statement is to be followed by the agent or surrogate if a patient is unable to provide instructions at the time a medical decision needs to be made.

Daniel J. Reiter, Esq.

Daniel J. Reiter, Esq.

Daniel J. Reiter is an adult guardianship and estate litigation attorney in New York City.

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