Let's Talk About It: Incapacity and End of Life

Estate planning doesn’t involve only things that happen after one’s death. A large part of a solid estate plan involves planning too for incapacity and medical illness. This part of the planning happens with making choices about your medical power of attorney designations or choosing a healthcare surrogate—the person who makes your medical decisions when you cannot. Another aspect of this part of your plan involves choosing, in advance, the type of medical care and intervention you want—or don’t want—if you’re faced with a terminal or end-stage medical condition for end of life care.

Talking About Incapacity & End of Life

How to Talk about Incapacity and End of Life Decisions

Not only is the planning important, but the conversations surrounding that planning, although uncomfortable for many, are likewise important. If the time comes toward the end of your life when someone else needs to make medical decisions for you due to your incapacity, having had the conversation will make it easier for that person to follow through with your wishes, easing some of the burden of the responsibility of making decisions in an otherwise likely emotionally trying time:

"Well, my mom died recently and my family had this wonderful conversation. Because of that conversation with my mom, we knew what my mom wanted, so we feel that we took good care of her and we all stayed on the same page. We didn't have any fighting or conflict during that very difficult time for our family."

That’s a quote from Bud Hammes, giving an example of how he’s often thanked on a weekly basis for having helped families engage in conversations about end-of-life and incapacity issues.

Hammes is a medical ethicist who founded an advanced-care planning program in LaCrosse, Wisconsin. He shared those remarks during an interview for a 2014 episode of Public Radio International’s To the Best of Our Knowledge: One City Talks about Death. Hammes’s program brings together families to have those conversations with a facilitator who asks open questions to assist the family in discussing wishes and concerns. The program has been so successful that the city of LaCrosse has three times as many people who have an end-of-life plan at death as the national average.

How an Attorney Can Help

Several states have adopted a similar program, but even if there isn’t one in your area, that doesn’t mean you cannot have that conversation. Whether on your own, or after meeting with an attorney and making those plans, or by bringing the family in to chat with the attorney’s help and counsel, have that conversation. It might be a little uncomfortable now, but it really can be a wonderful way to ease the struggle on your family members if that time of incapacity comes, reducing the feeling of burden and conflict, if they know your wishes in advance.

Attorney Jana McCreary

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Houston Estate Planning and Elder Law Attorney Jana R. McCreary has been an attorney for over seventeen years, a career move she made after working for over a decade with adults and children with intellectual disabilities and mental illness. Graduati… Read More

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