Young Adults And Lifetime Planning For Incapacity

By Abby Cohen

Death, illness, and tragedy are some of the most challenging topics to discuss with our loved ones. Especially for young adults, we feel like we are going to live forever just as we are now. Truth be told, before I learned about estate planning, I thought that it was something I would not bother with until I was older and had “made it” in this world. Many young adults also feel that planning is only reserved for older, well-off, and more established adults. But that is a myth that must be dispelled. In fact, estate planning is for everyone, regardless of the amount of property you own, your marital status, whether you have children, or your age.

Estate planning is like a toolbox; there are various documents available for different purposes. Broadly speaking, there are two main sets of documents/tools: documents that plan for after you pass away, and documents that plan for your incapacity. Although everyone needs to have both sets of documents in place, it is especially critical that young adults, at the very least, complete incapacity/lifetime planning documents.

Incapacity encompasses much more than just illnesses such as late-stage dementia; it includes any situation, temporary or permanent in nature, such as a vehicle collision or any other medical emergency, in which a person cannot make their own decisions anymore or express their wishes. Incapacity can plague any person at any time.

So how can one plan for the unexpected? Specifically, how can a young adult best prepare to protect their interests and values in the event of incapacity? There are three primary incapacity/lifetime planning documents that everyone should have in their arsenal: the Advance Directive, Health Insurance Portability and Accountability Act (“HIPAA”), and the Durable Power of Attorney. These documents appoint who will be informed about your condition and make decisions on your behalf. With these documents, you are in control of what wishes you choose to express.

Medical Tools: Advance Directive and HIPAA

Both the Advance Directive and HIPAA directly address medical decision-making and who will be informed about your condition when you are unable to give permission. Starting with the Advance Directive, this form covers all things medical. When filling out an Advance Directive, you appoint a “healthcare representative.” A healthcare representative has no power until you are in a position where you can no longer make your own decisions. If that occurs, the healthcare representative will make medical decisions on your behalf according to the wishes you describe in your Advance Directive. This can be a parent, sibling, spouse, friend, or anyone you want to be your Advocate.

What kinds of wishes/decisions does one make in advance? First, you are given three scenarios (terminal illness, advanced progressive illness, and permanent unconscious state). In these scenarios, you decide whether you want to be kept on life support or given any life-sustaining procedures. The advance directive also offers abundant space for you to express your wishes, values, and beliefs. For example, if you follow a particular religious belief regarding how your health care is to be conducted, you can write it down. Writing down your values and how you want to be cared for provides excellent guidance for those who may later become your healthcare representative.

HIPAA is another medical planning tool. This document allows you to choose important people in your life to receive information about your healthcare. You can name anyone you wish to include. Without a HIPAA in place, and in situations where you are unable to give contemporaneous permission, medical professionals cannot share your health information with your loved ones.

One of Ryan’s sons was attending University. While studying for finals alone in his room, he blacked out and split his head on the concrete floor.  He woke up from unconsciousness and called 911.  Once in the emergency room, the hospital would not alert his parents because he was an adult; he had to call Ryan. Fortunately, Ryan’s son, as part of a Young Adult Plan, had an Advance Directive and HIPAA Release.  Ryan presented those documents to the Emergency Room admitting nurse to gain access to his son.  With those tools, Ryan was able to advocate for his son, speak with the doctors, and take detailed notes on recovery.

Your wishes regarding medical treatment and who should be informed about your healthcare may change over time. For young adults, especially, many of us do not have a clue what is in store in the next 10 years, let alone the next month. The Advance Directive and HIPAA are entirely amendable and revocable. For example, if you have a falling out with someone who was named as a healthcare representative, you can always change your Advance Directive to reflect your current choices.

Financial Planning: Durable Power Of Attorney

Finally, the Durable Power of Attorney covers just about everything that does not involve decisions regarding medical treatment. In this document, you appoint someone as your “agent” to handle any matters you wish. From mail to voting to managing your student debt payment plan, your agent may have the authority to take care of your financial affairs during your life. Like the Advance Directive and HIPAA, the Durable Power of Attorney is amendable and revocable. So long as you have the capacity to do so, you can alter the document to reflect your current life situation. It is essential to choose someone you trust as your agent because an agent’s authority takes effect immediately upon signing the Durable Power of Attorney.

No Plan Defaults

What happens if you do not get these documents in place and later lose capacity? For medical decisions, Oregon, among other states, has a statutory default system, as stated in ORS 127.625, that allows others to make decisions on your behalf. If your preferred healthcare advocate is not listed in that statute, or if you want to exclude someone who is otherwise on that list from becoming your backup medical decision-maker, you must fill out an Advance Directive.

Additionally, in more severe situations, court intervention may be necessary. Without incapacity/lifetime planning documents in place, to establish a person as your decision maker, a court proceeding, also known as “protective proceedings,” must take place. These proceedings may establish a conservatorship and/or a guardianship. A conservatorship establishes a person whom the court chooses to handle your financial affairs (think Britney Spears and Wendy Williams). In contrast, a guardianship establishes a person whom the court also chooses to handle your personal affairs, such as healthcare. Either way, protective proceedings act as a lawsuit against the person being protected. Lawsuits can be costly, drawn out, and made public.

Your Next Steps in Estate Planning

So, what is the bottom line? Without any lifetime planning tools in place, if you are unable to make your own decisions or express your wishes, our state uses a default system in which the court decides who will speak on your behalf. Lacking a plan can lead to undesirable results and is often more expensive, time-consuming, and less effective. With a bit of planning, many of the issues associated with protective proceedings and statutory default systems can be avoided. Your decisions on who will be your advocate and trusted people are private, amendable, and entirely up to you.

Protect Your Future with Collier Law

At Collier Law, we focus on more than just documents—we build lasting client relationships by providing comprehensive estate planning services that encompass financial decisions, medical care, disability issues, and financial management, including bank account administration. Our experienced team provides trusted legal guidance and advice to help you avoid costly court authorization processes and navigate challenges such as guardianship and conservatorship through proactive planning. With the added support of our Family Law Program, we ensure that every aspect of your future is protected with clarity and care.

Take control of your future—contact Collier Law, your estate planning attorney in Salem OR, for personalized estate planning services and legal guidance tailored to your needs.