Comfort Planning: Tips On How To Prevent Strangers From Taking Over If You're Incapacitated

January 16, 2017

I was at a meeting with a client and her attorney when the lawyer asked the client, “What do you absolutely need to do for your estate planning?” The client shrugged her shoulders and looked puzzled. The attorney said, “Absolutely nothing. You will no longer be here!”

The attorney’s macabre joke was only partially true. A comprehensive estate plan can include instructions that will impact your well-being while you are living, during a long recovery, or at the end of life. I call this “comfort planning.”

None of us wants to talk about our eventual deterioration and demise. We often use humor and stories to help our clients open unpleasant dialogue with their family members and to encourage our clients to seek legal advice.

One in three adults over age 50 will die within 12 months of experiencing a hip fracture, and 2.8 million seniors will report to the emergency room this year due to a fall. Here are three true stories of seniors who fell and how comfort planning could have helped them.

  • Utilize all available benefits

Don and his wife Gail worked hard, saved to have a modest nest egg and paid off their small mortgage before retiring. Gail fell last year and broke her hip, and her health quickly deteriorated.

After the Medicare benefits suddenly expired, Don brought Gail home to care for her himself. Social Services found his care was inadequate, intervened, and demanded Don pay for a facility that cost over $6,000 a month.

Don estimates their life savings will be gone within 18 months. Don has cut back on necessities, including food. Not having Gail home to care for him has caused his health also to decline.

Don and Gail did not know Medicaid (called Medi-Cal in California) includes an entitlement program for long-term care, and it is not just for the poor. Don and Gail may qualify for Medicaid benefits so Gail can stay in a more comfortable nursing home, and Don can still have funds for his care and savings for the future. Had they discussed planning with an attorney previously, they could have retained even more of their savings.

  • Do not give up your rights

After traveling the world several times over, Judy, a successful photographer, happily became a homebody in her retirement. Her neighbors knew her as kind and a little forgetful. She fell and broke her hip and suffered a concussion. While in the hospital, a fiduciary, whom she had never met, went to court and had herself named Judy’s conservator.

Her neighbors visited Judy and found that, although she had substantial resources and could afford care at home, she was in a sub-par nursing facility. The neighbors complained that the people living in Judy’s home (who happened to be related to the fiduciary) had “trashed” her house and thrown most of Judy’s life’s work in a dumpster.

Had Judy discussed with her attorney the different types of power of attorneys and had she chosen a friend or family member to be in charge of her affairs in the event she became incapacitated, a stranger would not have been named as her conservator. Judy probably would have recovered comfortably in her own home with all of her belongings and savings intact.

  • Reduce unnecessary pain

Delores fell and suffered from a broken hip and complications from diabetes and an infected port catheter. In the waiting room of the hospital, her grandchildren were calling family members exclaiming, “They want to kill grandma!”

The grandchildren did not understand the doctor wanted to talk with the family about a DNR (Do Not Resuscitate) order. A DNR order allows you to choose whether you want CPR in an emergency and can sometimes spare a patient unnecessary pain.

Delores’ small chest was severely bruised from the previous resuscitations, and she was noticeably suffering. She had not discussed her medical wishes with her family and had not prepared a medical directive that could have included a DNR order.

Had she done “comfort” planning, her medical directive could have encompassed anything to soothe and relieve her suffering. Her instructions could have included limiting medical testing and procedures; dietary restrictions and food likes/dislikes; whom she would like to visit with and when; spiritual and emotional counseling; and medicating pain, anxiety, nausea, or constipation.

What do these three stories have in common? At some point, others had to make decisions on behalf of the person who did not have comfort planning in place. While we cannot eliminate the risk that we will eventually suffer from an injury or grave illness, discussing our wishes with family and friends and paying for relatively inexpensive planning can help ensure we subsequently receive the best care possible.