life happens

Life Happens. Plan on It.™ – Lifetime Edition

Promise Law’s tag line of Life Happens.  Plan on It.™ wasn’t the result of a focus-group. Instead, it comes from our lived experience as well as the lived experience of those who we are honored to call our clients and friends.

But what happens when “life happens” and there are no plans?  Or when “life happens” and the plans are insufficient, inadequate, or outdated?

First, take a deep breath.  Stress is isolating, but chances are high that others have been in this situation before; you are not alone!  Second, gather as much information as you can about the situation.  Third, contact Promise Law to discuss your options.  It may well be that provisions in Virginia law offer a fix or accommodation.

Keeping in mind that a small difference in facts can make a great difference in results, following are some common ways in which the lack of a plan or an insufficient, inadequate, or outdated plan fail along with potential fixes.

The law presumes that anyone who is 18 years old or older is legally competent.  Perks of legal competency include making one’s own decisions about financial affairs, marriage, living arrangements, employment, education, and health care without being overruled by a parent, spouse, or child.    A peril of legal competency is that if a person becomes incapacitated (temporarily or permanently) due to accident, illness, or mental decline and financial management or medical decisions must occur, then generally no one else has the authority to make decisions on the person’s behalf unless the person provided them legal authority to do so prior to the onset of the incapacity.

Permission for someone else to make medical decisions if the patient is unable to so takes the form of an Advance Medical Directive (AMD) also called a Medical Power of Attorney that names an Agent to make medical decisions for the person who signed the AMD.   An AMD is always “springing,” which means that the Agent can only make medical decisions when the health care provider determines the patient is unable to do so.  What does “unable to do so” mean?  It means that the patient cannot understand the diagnosis, the pros and cons of the treatment options (treat, choice of medication or procedure, wait-and-see, etc.) and make an informed choice based on the information available.

Once the patient regains the ability to make an informed choice, the Agent’s authority to make medical decisions for the patient ends until the next time it “springs.”  If the patient does not have an AMD in place, or if the Agent will not act, cannot act, or cannot be located, then a provision in Virginia law allows, but does not require, the attending physician to consult a hierarchy of individuals who can make the patient’s medical decisions when the patient can do so.  In the absence of an AMD Agent and with an ongoing incapacity, the “fix” is to petition the Court to have the person declared incapacitated and to have a guardian appointed to make medical, and possibly other personal, decisions.

Permission for someone else to manage a person’s finances, property, and assets—as well as contractual arrangements—takes the form of a Durable Power of Attorney (POA).  If an individual who becomes incapacitated and unable to manage her own financial affairs does not have a POA, then the remedy is to petition the Court to appoint a Conservator to manage the financial affairs with ongoing oversight by the Commissioner of Accounts.

If the POA has no named Agents who are living and/or willing and able to act, then it may be possible for a successor agent to be designated if the POA authorizes it.  If not, then the remedy is to petition the Court to have a Conservator appointed.  If the person who created the POA can’t protect herself from financial exploitation, then a remedy is to petition the Court to have a Conservator appointed and to remove the person’s ability to manage her own finances (except, perhaps, for an agreed upon allowance).

Life Happens – Contact Promise Law For Help

Contact Promise Law to learn how you can have a free audit of your AMD and POA reviewed to see whether they would meet your needs if “life happens.”


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