Imagine a loved one becomes temporarily incapacitated, through a fall, accident, illness, brain injury, from falling victim to substance abuse or a mental health crisis. Doctors anticipate a complete recovery, but in the near-term, their life and their finances may be put on hold. Affairs cannot be addressed and bills cannot be paid, leaving them at risk of financial repercussions that could leave their lives a mess once they re-emerge.

We recently wrote an article entitled, “Documents Can Protect Family Amid Mental Health, Substance Abuse Crisis.” In it, we explored how substance abuse, from alcohol to narcotics such as fentanyl, cocaine, heroin, and methamphetamine, is on the rise, along with mental health disorders, dementia or memory related issues.

We asked what concerned family members can do to “ensure their loved ones don’t add to their issues due to incapacity…especially when they are the only ones to have access to their money, holdings and other valuables. They could be at risk of frivolous or wasteful spending or more importantly vulnerable to theft or abuse?”

The immediate answer is to create a revocable trust. When crafted by a skilled attorney, this document can protect or curtail the family member’s access to various accounts and allow trusted family members or advisors access to accounts to act in the individual’s best interests.

These are complicated conversations, especially when held with a family member who is otherwise healthy and does not recognise their mental health or substance abuse issue as problematic. One must gently convince the family member that signing such a document is a way to protect their interests, without pointing out their mental health or other situations. It’s a critical distinction not to be taken lightly.

As we discussed previously, this document isn’t designed to address guardianship; the individual in question, in this type of situation, would be expected to emerge from incapacitation. Be mindful that going through a guardianship process takes months to put in place and remove, if no one contests it.

There is only one class of documents designed to protect an individual’s life and health but NOT their assets. Known generally as advance directives, these ensure any adult, no matter their station, wealth or status, has a voice with regards to their own healthcare.

Advance directives are crucial legal documents that outline your healthcare wishes if you become incapacitated or otherwise unable to communicate them yourself. Key directives include:

• Living Will: This specifies desired medical treatments or withdrawals in terminal or irreversible conditions.
• Healthcare Power of Attorney (HCPOA): This designates a trusted person to make healthcare decisions on your behalf. This can be an adult family member, your attorney, or someone else you trust and who is available to communicate with your healthcare professional.
• Do-Not-Resuscitate (DNR) Order: This document instructs medical professionals, such as physicians or Emergency Medical Service (EMS) providers, not to perform care, such as cardiopulmonary resuscitation (CPR), in case of cardiac or respiratory arrest. Generally, otherwise healthy individuals might not rely on such a document; it’s commonly used for people at their end of life or at the end-stage of a terminal illness.
• Physician Orders for Life-Sustaining Treatment (POLST): This is similar to a DNR but includes more detailed end-of-life care instructions. A POLST might include a DNR instruction regarding CPR, but provides more instructions regarding additional medical interventions.

Creating these directives can help ensure your wishes are honoured and relieve family stress and conflict during these difficult times. It’s important to know that legal requirements vary by state. Be sure the attorney drafting your documents knows the legal stipulations for those states where you may claim domicile full or part time.

In the case of advanced directives, I would recommend that you give a copy to your local hospital and your generalist, otherwise they may not act in accordance with your wishes. Some states require that the DNR, for example, be printed in a specific colour and posted prominently. Per Florida statute, for example, EMS and medical personnel are only required to honour the form if it is printed on yellow paper.

If you need some guidance in preparing such documents – or exploring what documents you may need, let’s talk. I can help navigate the challenges of protecting your assets and life when you’re not capable of doing so for yourself.

If you know someone suffering from mental health or substance abuse, the National Helpline is a free, confidential, 24/7 treatment referral and information service (in English and Spanish) for individuals and families facing mental and/or substance use disorders. Call 1-800-662-HELP (4357).