The Advance Directive or “Living Will” is a document that outlines your treatment preferences in the event of a terminal condition or life-threatening illness.
These treatment preferences include whether you wish to be placed on life-support, whether you wish to receive fluid and/or nutrition via feeding tube, whether CPR or other extraordinary measures should be taken to extend your life, and whether you wish to receive pain medication.
In the absence of an Advance Directive or appointment of a Health Care Agent to instruct otherwise, the default procedure for medical professionals in Maryland is to keep an individual alive indefinitely with the use of breathing machines and forced hydration and nutrition, even if there is no reasonable likelihood of recovery.
With a valid Advance Directive, you can ensure that you are treated according to your wishes and eliminate the need for doctors, family members, or loved ones to make these tough decisions on your behalf.
In Maryland, experienced estate planning attorneys normally recommend three documents that, when combined, create a comprehensive plan to identify and appoint someone to step into your shoes and make decisions on your behalf if you are unable to do so.
The Maryland Statutory Power of Attorney and Durable General Power of Attorney identify an individual or individuals to manage and make decisions regarding financial matters.
The Durable Medical Power of Attorney and Appointment of Health Care Agent identifies and appoints one or more individuals to make decisions related to your health and treatment.
If you become disabled and have not executed valid Power of Attorney documents, a Guardianship proceeding is required to appoint someone to act on your behalf. This process, which requires the time and expense of filing and pursuing a Guardianship action with the Circuit Court, can be eliminated by taking the time to memorialize your wishes and identify those individuals who you wish to act on your behalf.
A special needs trust is a planning mechanism used to enable the application of assets for the benefit of a disabled individual without interfering with his or her eligibility for government benefits.
While government benefits such as Supplemental Security Income (SSI) and Social Security Disability Insurance (SSDI) provide some assistance for eligible individuals, those benefits often are insufficient to cover the continually increasing cost of medical care. Additionally, the receipt of certain government benefits is subject to certain restrictions on the individual’s income/resources. An unexpected increase in income (such as a paycheck received ahead of schedule) or receipt of assets (such as an inheritance) can disqualify an otherwise eligible individual from receiving benefits.
By creating a special needs trust, additional assets can be provided for the treatment and care of a disabled individual — supplementing government benefits instead of replacing them.
In addition, in 2016, Maryland debuted the “Achieving a Better Life Experience” or “ABLE” account. Modeled after 529 college savings plans, the account allows the annual investment of up to $14,000.00 for anyone who became blind or disabled before turning twenty-six (26). Funds invested in an ABLE account do not count against the asset limits used in determining government benefit eligibility.
Using these mechanisms and other planning techniques, an experienced planning attorney can assist in creating and implementing a plan for the continued care of individuals with disabilities.
When an individual is unable to make decisions or otherwise care for him or herself—as a result of age, medical condition, or otherwise—someone must step-in and assume the responsibility of making decisions for that individual.
The execution of certain planning documents, commonly referred to as “Powers of Attorney,” can identify and appoint specific individuals to fill that role ahead of time without court involvement. However, if the individual has not executed the appropriate documents and identified someone to act on his or her behalf in all contexts (i.e., health, finances, personal decisions, etc.), a court proceeding may be required to appoint someone to make decisions in one (or all) of those areas.
Retaining an attorney familiar with navigating this process and bridging the gap between the individual’s loved ones and the court system can help eliminate much of the time, stress, and uncertainty that comes with petitioning the court for the appointment of a Guardian.