Elder Law
Our firm focuses on the following areas of practice:- Probate and Trust Administration
- Planning For Incapacity
- Guardianship
- Long Term Care
- Special Needs Trust
If you don't see exactly what you are looking for, give us a call or email us, if we can't assist you, we will point you in the right direction.
INCAPACITY
The importance of Planning.
The phrase "planning for incapacity" refers to meeting with an attorney and preparing the legal documents which would be needed in the event an accident or illness left you without the ability to pay your bills, manage your finances or attend to other business and personal matters.
The most significant decision to be made is the selection of the person who will make decisions while you are unable to do so. This person is variously known as "agent", "surrogate," "trustee", "attorney-in-fact", etc., but regardless of the title, each person exercising responsibility for another individual has a duty of loyalty, trust and reasonable prudence. Keep in mind the capabilities and weaknesses of those to whom you might entrust responsibility, regardless of your affection for them, or your desire to treat your family "equally." Common sense should prevail in the naming of any important decision maker. Equally important is the need to inform the individual that there may come a time when he or she may have to serve, and to communicate your personal wishes, and the location of important documents and papers.
Here are a few kinds of documents typically used in Colorado by individuals of all ages to ensure that their privacy, property and wishes remain protected during their lifetimes:
Durable Power of Attorney (DPOA): A legal document which allows a competent individual (the "principal") to delegate certain actions, usually related to financial and personal business affairs, to an "attorney-in-fact", or agent. Health care powers may also be included in some cases. Any person over the age of 18 can serve as agent, as can financial institutions in certain instances. "Durable" refers to the fact that the Power of Attorney is still effective even if the principal becomes incapacitated. Specific language must be included in the document to make it durable. A DPOA remains in effect until revoked, or until the principal dies.
Springing Power of Attorney: A power of attorney conditioned upon the principal's lack of capacity to manage property. It only becomes effective upon the incapacity of the principal to manage property. It is exercisable by the agent upon the delivery of two affidavits to third parties: an affidavit of the attorney-in-fact, establishing his or her authority; and an affidavit of the principal's primary physician, establishing incapacity to manage property.
Advance Health Care Directive (AHCD): An "advance directive refers to any written agreement under which a competent individual (a) designates a "surrogate" decision maker to act if the patient is too ill to provide informed consent, and/or (b) makes clear his or her wishes regarding the use of life prolonging procedures under certain circumstances (often referred to as a "living will"). In Colorado, life prolonging procedures cannot be withheld or withdrawn until the attending physician and one other physician have documented that the patient is in either a terminal, persistent vegetative state or end-stage after a period of 10 days.
The designation of a health care surrogate must be in writing, witnessed by two persons, neither of whom can be the Surrogate, and one of whom must be unrelated by blood. Living wills can either be written or oral. While there is a suggested form in the statute for language in a living will, each document can be individualized and should reflect the principal's own wishes regarding end-of-life treatment.