Incapacity Planning

Thanks to innovations in science and medicine you can be kept alive in circumstances which in the past would have caused death. However, this can result in a diminished capacity to make decisions for yourself, including whether to remain living at home or enter an assisted-living facility, applying for government benefits and end-of-life treatment. That’s why it’s important to have a plan in place for your finances and health care decision making. A court can appoint a guardian for you, but this is expensive and time-consuming. Luckily, there are other options which allow your family and loved ones to take care of you without going to court. The two primary means of planning for incapacity are the Advance Directive and the durable power of attorney.

An Advance Directive is a legal document used to communicate decisions about your health care to doctors and medical providers in the event you cannot communicate these decisions on your own. In Oklahoma, the Advance Directive form contains three parts. The first part is the Living Will. In the Living Will, you outline what end-of-life treatment you want if you are unconscious, have a terminal condition or are in a persistent vegetative state. This includes the use of feeding tubes and breathing machines. You can also give more detailed instructions. Part two of the Advance Directive is Appointment of Health Care Proxy. Your health care proxy is the person who will make medical decisions on your behalf if you cannot make medical decisions for yourself. This person must be at least 18 years old. In addition, you can designate an alternate health care proxy should this person be unable to serve. Your health care proxy has the ability to make all medical decisions you could make for yourself but must follow your instructions regarding end-of-life treatment. Finally, the Oklahoma Advance Directive form contains a section called Anatomical Gifts, in which you have the opportunity to donate your organs and/or other body parts to transplantation and research after your passing.

The other document used to plan for incapacity is the durable power of attorney. A durable power of attorney gives another person legal authority to act in your place in the event you become incapacitated or a doctor declares you incompetent. The durable power of attorney typically grants very broad powers for a variety of financial and health care decisions. However, in most cases, the durable power of attorney does not deal with end-of-life treatment and the agent under the durable power of attorney must defer to the health care proxy named in an Advance Directive.

Both the Advance Directive and durable power of attorney are alternatives to guardianship. You can complete an Advance Directive on your own. Yet, the pre-printed forms do not take into account your individual situation and may not meet your needs. An Elder Law attorney will counsel you on the choices available to you under Oklahoma law, advise you about who can and should serve as your health care proxy and ensure that the legal requirements for the Advance Directive are met. Likewise, Elder Law attorneys have expertise in preparing, defending and enforcing durable powers of attorney.

Attorney Barrett assists clients with the Advance Directive and durable powers of attorney. Contact the Law Office of Tyler R. Barrett, P.L.L.C. today for a free consultation by calling (405) 928-4075 or filling out the form on our Contact Us page.

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