Estate planning is one branch of the larger tree of elder law, so when you consult with an estate planning attorney you will have the opportunity to prepare for all of the possibilities that come along with aging. It is not something that most people want to consider so it is often swept under the carpet, but one of the contingencies that it would be prudent to prepare for is that of incapacity.
When you look at the statistics objectively you can see why any intelligently conceived estate plan would include preparations for possible incapacitation at some point in time. The oldest among us are the most rapidly expanding segment of the society, and of course medical science is capable of some amazing things. So it is quite conceivable that you will live to an advanced age, and this is a mixed bag. Yes, life is precious when you are healthy and active. But some 50% of seniors who have reached the age of 85 are suffering from dementia, making it impossible for them to make sound decisions on their own.
If you were to become mentally incapacitated late in your life, the court may be asked to appoint a guardian to make your decisions for you. You would become the ward of the court-appointed guardian.
Most people would prefer to appoint representatives of their own choosing rather than leaving this decision in the hands of the court, and this is achieved through the execution of durable powers of attorney. The difference between a durable power of attorney and a general power of attorney is that a durable power of attorney remains intact should the principal become incapacitated.
In the majority of cases it is best to appoint two different attorneys-in-fact; one to make medical decisions, and one to make financial decisions. You may never need to defer to your chosen decision makers, but it is comforting to proceed with the knowledge that you are prepared for any eventuality.
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