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Incapacity can happen to anyone, at any time. Whether from an unexpected accident, serious illness, or the natural effects of aging, the ability to make your own decisions is something many people take for granted—until they no longer can. No one is immune to the possibility of incapacity, and that’s why incapacity planning is so important.
Incapacity planning is a key part of a comprehensive estate plan, although it is often overlooked. Not having an incapacity plan may also lead to legal battles regarding which medical treatments should be used which only add to the stress and anxiety placed on your loved ones during an emergency. In this blog post, we’ll explain what incapacity planning is, why it’s vital for Ohioans, and what legal tools you should have in place to protect yourself and your loved ones.
Incapacity planning refers to the legal process of preparing in advance for the possibility that you may become mentally or physically unable to manage your own affairs.
Without a comprehensive incapacity plan, decisions regarding your health and assets may be left in the hands of others, causing unnecessary stress and costs and potentially leading to outcomes that do not align with your wishes. By executing specific legal documents while you are still competent, you ensure that someone you trust has the authority to act on your behalf if you are later declared incapacitated.
Ohio law provides specific procedures and forms to accomplish this, but it’s important to consult an experienced estate planning or elder law attorney to make sure your plan is valid and tailored to your unique situation.
Ohio has a large and growing population of seniors—more than 2.8 million residents are over age 60—and nearly one in four adults lives with some form of disability according to the Centers for Disease Control. A significant percentage of those with disabilities struggle to access healthcare due to cost and logistical barriers.
Still, many people never take steps to plan for the possibility of becoming incapacitated. This can lead to serious consequences, including:
With a solid incapacity plan in place, you can maintain control over your affairs even when you’re unable to voice your preferences. It’s not just smart planning—it’s a gift to your loved ones during a difficult time.
Everyone needs an incapacity plan—not just seniors or people with chronic illnesses. Some key groups include:
In Ohio, several legal documents form the foundation of an effective incapacity planning strategy. These include a financial power of attorney and advanced directives.
1. Financial Power of Attorney
A financial power of attorney gives someone you appoint (your “agent”) the authority to make financial decisions including paying bills, managing investment accounts and mortgaging property. However, it is important to work with a knowledgeable estate planning or elder law attorney so that you are creating a financial power of attorney that will be effective in the event of any incapacity.
A durable financial power of attorney remains in effect even after you become incapacitated, making it a preferred tool for incapacity planning. In Ohio, for a power of attorney to be “durable,” it must be created under sections 1337.21 to 1337.64 of the Ohio Revised Code and not expressly provide that the power of attorney is terminated by the incapacity of the principal (see Ohio Revised Code § 1337.24).
You can also structure a financial power of attorney to become effective immediately, or only upon a formal determination of incapacity (a “springing” POA). Either option ensures that your finances will be handled without the need for court involvement.
2. Durable Power of Attorney for Health Care
A healthcare power of attorney enables you to appoint a trusted person to make medical decisions on your behalf if you are unable to communicate. This includes decisions about treatment options, surgeries, hospitalization, and placement in nursing homes.
Ohio Revised Code §§ 1337.11–1337.17 outlines the legal requirements for creating a valid durable power of attorney for healthcare. The document must be notarized or witnessed by two adults who are not related to you or designated as your agent.
Your healthcare agent is legally obligated to act in your best interest and in accordance with any instructions you’ve provided. It is also important to note that a valid Do Not Resuscitate (DNR) order in Ohio supersedes a valid durable power of attorney for health care.
3. Living Will Declaration
A Living Will is a legal document that outlines your end-of-life care preferences if you are permanently unconscious or terminally ill. It directs healthcare providers to withhold or withdraw life-sustaining treatment under specific circumstances.
In Ohio, Living Wills are governed by Revised Code § 2133.01 et seq. A Living Will does not authorize someone to make decisions for you (that’s the job of your healthcare POA), but it does give clear instructions about your preferences, helping to avoid family conflict.
In Ohio, the statutory Living Will Declaration addresses:
4. HIPAA Authorization
HIPAA is an acronym for the Health Insurance Portability and Accountability Act of 1996, and it protects your sensitive health information from disclosure without your consent. So, a HIPAA Authorization functions to provide consent to disclosure (which can be tailored according to your unique circumstances) so that your designated loved ones can lawfully receive protected health information from your designated medical provider(s) . Without this document, federal privacy laws may prevent healthcare providers from sharing your health information—even in emergencies.
Adding a HIPAA authorization to your incapacity planning documents can facilitate smooth communication during critical healthcare situations.
Planning ahead for the possibility of incapacity may also important when it comes to qualifying for Medicaid long-term care benefits. If you become incapacitated and require nursing home care, having a financial power of attorney in place allows your agent to:
Without the right legal authority, your loved ones may be unable to take these actions, delaying care or triggering unnecessary out-of-pocket expenses.
If you’re ready to start your incapacity planning, follow these steps:
In some cases, individuals may become incapacitated without having made any advance plans for their care. When this happens, a family member or loved one may need to seek guardianship through the court.
A guardian is an individual, corporation, or association appointed by the Probate Court to assume legal responsibility for another person and/or that person’s property when the individual is unable to manage their own personal care or financial affairs. In Ohio, there is a guardian of the person (who makes personal and healthcare-related decisions) and a guardian of the estate (who makes financial decisions). These roles can be filled by one person or multiple people depending on what the court decides. However, going through the legal process of obtaining guardianship can be complicated, costly, and time-consuming. Creating a financial power of attorney and healthcare power of attorney reflects a proactive measure as opposed to the reactive nature of a guardianship.
Many of us have heightened awareness of the reality of disability, as over one-quarter of Americans live with a disability. Yet many of us don’t give sufficient attention to the possibility of incapacity. Planning for incapacity is prudent, and a standard part of any comprehensive estate plan. It gives you peace of mind knowing that, no matter what the future holds, your voice will be heard and your wishes respected.
At Rhodium Law, we help clients throughout Cleveland and Northeast Ohio create tailored incapacity planning documents that comply with Ohio law and reflect your unique goals and objectives. Whether you want a comprehensive estate plan or just want to put legal protections in place in case of incapacity, we’re here to help. To book a free consultation with us, reach out to our office now at (216) 699-8145.
