Incapacity Questions

An advance medical directive is a legal document which tells the people who care for you, what kind of medical care you would want under certain types of incapacitating medical conditions.

Should you become terminally ill and unable to communicate what kind of end of life care you would – your written medical directive would let those caring for you, know what kind of care you wanted. Should you lapse into a coma, the directive would tell your care givers what you wanted. Should you become incapacitated by Alzheimers, the directive would tell your care givers what kind of care you want.

Because it is impossible to know what will happen to us when we become older, another thing we can do as a part of an “advance medical directive” is designate someone we trust, a spouse, a child, a best friend – to make medical decisions on our behalf should we become incapacitated. This person must be over 18, willing to take on the task and must not be a health care provider; such as a physician or nurse (unless a relative).

The only time your Advance Medical Directive can be ignored, is if the business facility/hospital you are in, has a religious objection to the wishes you specify in your Advance Health Care Directive. In this case, the hospital’s religious beliefs are seen as more important than your wishes. So be sure that you chose a hospital that fits your wishes.

If the hospital has a religious objection to what you have asked for in your medical directive, they have a right not to follow it.

But, the Patient Self-determination Act was enacted by Congress in 1990, and it requires that any hospital, nursing home, hospice program, or in-home health agency that accepts Medicare or Medicaid, MUST GIVE YOU A WRITTEN COPY OF THE ITS POLICIES CONCERNIING ADVANCE MEDICAL DIRECTIVES. AND IF THEY DON’T WANT TO GO ALONG WITH WHAT YOU HAVE ASKED FOR IN YOUR DIRECTIVE, YOU HAVE THE RIGHT TO BE TRANSFERRED TO ANOTHER HOSPITAL. In addition, HMO’s must, when you enroll, give you a copy of their Advance Medical Directive Policy – so make sure you look these over carefully.

In addition, all these same institutions MUST ask you if you have an Advance Medical Directive and put it in your file, if you do. It’s a good idea to carry an Advance Medical Directive Card in your purse or wallet – that tells your caregivers that you have an advance medical directive. And if you have a person identified as having your medical power of attorney. That way if you’re in an accident or become incapacitated, they will know.

1. Financial Planning for Incapacity. The primary tools for handling your financial affairs should you become incapacitated are:
   • Joint Ownership. Particularly bank account.
   • Durable Power of Attorney.
   • Trusts
   • Wills
   • Money Management Services.

   * Each of these is discussed in detail in other answers.

2. Advance Medical Directives. The primary tools for handling your Medical affairs should you become incapacitated are:
   • Living Will
   • Medical power of Attorney
3. Trusts. A tool for managing your funds in the event of your incapacity.
   • Living Trusts
   • Standby Trust
   • Testamenatary Trust
4. Money Management Services
   • Arranging for payment of long-term health care: use of private insurance, Medicare, Medicaid (Medi-Cal in California) and Supplemental Security Income (SSI) when applicable;
   • Preserving the family assets: ensuring that the patient’s spouse and any disabled family members are adequately protected; and
   • The distribution of the person’s assets on his or her death. (If the person has a disabled spouse, child or other family member that they wish to provide for, special arrangements need to be made.)