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Incapacity planning
According to statistics, nearly 46% of us will become severely incapacitated during some point in our lifetimes. Most of us are not even aware when this happens and often family members may not realize until there is a catastrophic event or strange things such as dwindling bank accounts, piles of bills or increased creditor calls start happening. When you start putting yourself in a financially vulnerable position - such as unreasonably giving away assets you may or may not have, or ignoring bills, it is important that you have nominated someone to step into manage your finances, your legal and tax matters and control, preserve and manage your digital assets.
Similarly, if catastrophic illness renders you incapacitated, having a person who is like-minded in how you would have made decisions regarding your medical, mental health care and final end-of-life matter is important.
Unfortunately, all too often people do not bother to nominate someone to make these all important decisions for them in case of their incapacity which means family members might need to ask the Court to step in to appoint someone (a Guardian or Conservator) to work with the family and medical teams. Unfortunately, the court appointed professional must get paid by the incapacitated person's estate and very often might not have met the individual before the incapacity and might not make the same decisions that a trusted power of attorney may have made. Before the 2015 passage of Obergefell v Hodges, many gay and lesbian couples had to make sure their incapacity documents were done so that their partners could speak for them rather than allowing a court to defer to other family members.
TREVERI LAW INCAPACITY DOCUMENTS
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Power of Attorney Financial
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Power of Attorney Medical
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Power of Attorney Digital
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Living Wills
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HIPAA Authorizations
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In Case of Emergency (ICE) cards
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Temporary Guardianships
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Permanent Guardianships
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Parental ICE cards
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Operating Agreements for Business owners
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Buy-Sell Agreements for Business Owners
Your Incapacity Planning Attorneys
While incapacity planning might be of concern to our elders or those who are ill, establishing an incapacity plan is important for everyone. None of us have a crystal ball to tell us when life may throw us a curveball, or a world-wide pandemic putting thousands of patients on respirators without a known cure. Family members were forced to decision if they would authorize experimental treatments and sometimes - due to restrictions on visitations, hospital staff just did what they thought was best - without any legal authority whatsoever. Without the essential financial and healthcare decision-making documents in place, a court may appoint a guardian or conservator who will make financial and medical decisions on your behalf. In the case of the hundreds of elderly patients in nursing homes, those who did not have nominated agents found themsleves with unexpected court appointed guardians paid for at the patient's expense but really put in place to protect the facilities. Contact us at Treveri Law, at 505-808-0234 to establish your incapacity plan today.
Why is an In Case of Emergency Card to important to have?
When accidents happen, more often than not, emergency personnel concentrate on making sure no one dies on their watch. Bodies are placed on stretchers and taken away in ambulances. Usually you will be taken to the ER where the social worker on duty will try to find and notify a family member. Meanwhile, valuable hours are lost and the hospital staff may be making important life-impacting decisions for you. And what happens if you had a minor child in the car with you? How will your family be informed of your accident, where you are taken and more concerning, who will take your child?
While many of us (mostly Gen Y and Z) put emergency contacts in our phones with the assumption that emergency room personnel will look at it, a 2019 law in New Mexico now limits law enforcement from collecting digital information from your phone. In addition, even if your family member was called, without you giving them legal authority to make decisions on your behalf your nominees would not be able to take legal temporary custody of your child or make legal or medical decisions for you. Without a legal nomination from you, your family may be excluded from being involved in making decisions and the only way to get involved will be to get appointed by the Court after a hearing.
If your children find themselves with law enforcement personnel after you have been carted away, New Mexico police officers are not allowed to bring minors into a substation and must immediately find a legal guardian or contact the Children, Youth and Family Department to take custody of the child. If you child is under the age of 11, they will be placed with a temporary Foster family - if one is available. If your child is over 11, they most likely will end up at the Juvenile Detention Facility. And then when a family member does show up, legal documentation and proof that they have the right to take the child must be shown. Criminal background checks will be done. In many instances if there are ANY outstanding parking tickets or perceived issues CYFD will often refuse to release a child which will force the family to hire attorneys for a hearing while the child sits in Foster care.
At Treveri Law, we have developed a unique In Case of Emergency (ICE) Card for all drivers including parents of minor children to carry in their wallets. The names on each side of the card are of persons who have been nominated and who have legal authority to either speak for the now incapacitated person or to take custody of a minor child. This service is in addition to completing your Estate Planning documents and can not be purchased separately since the nominated persons must have legal authority to be on the card. If you would like our Firm to add the ICE card to your services, please call us today at 505-808-0234.
Thank you.