Decision Making When I Can’t
Lots of people want to know the answer to the question, “Who makes decisions for me when I can’t?” You can’t make decisions if you’re unconscious, incapacitated, or incompetent. These conditions arise when you’re older, dealing with serious medical conditions, or in an accident.
It’s Your Freedom To Make Your Own Decisions
The good news is that in the United States, the government, the courts, and the law allow you to make those decisions. America is heavily biased toward individual freedoms and the right to own property. Many Constitutional scholars would suggest that individual rights and property rights go hand in hand and without one the other would be threatened. The Constitution and amendments secure these rights. The courts, the federal government, the state government, and the Church have acquiesced to the American Constitution. For all practical purposes, you, the individual, has total control over your body and your property.
Your Decision, If You’ve Put In Place The Right Documents
But to ensure these rights you need to do a little planning. Medical interventions can be protected by a number of tools. These tools include Advanced Care Medical Directives, Living Wills, Community DNRs, Physician Orders for Life-Sustaining Treatment, Five Wishes, and Medical Power of Attorneys. Many do the same or similar things, others are unique. CarePlanIt covers all of these in detail. See our Advance Medical Directive Section.
Disposition and management of property also has a set of tools. These tools include Powers of Attorney, Wills, and Trusts. CarePlanIt covers all of these in detail.
If you do nothing what happens?
Medical Treatment Decsion Making
First responders like paramedics and EMTs are trained to keep you alive. If they’re called to your house and you’re non-responsive they will try and resuscitate you if. If you need oxygen or fluids and they’re trained to provide those services, they will.
If you don’t want to be resuscitated by first responders, you need to take action. Your State may have Community DNR’s or POLSTs.
Property Disposition Decision Making
Wills and trusts are used to distribute property and money after you die. There are other tools like declared beneficiaries on life insurance policies and payable on death clauses on joint bank accounts.
If you die without a will, you die intestate. States have very specific rules regarding what happens to your property when you die intestate.
State Decision Making – Intestate Distribution
The 1990 Uniform Probate Code (a code designed so States could use it as a starting point or simply adopt it for their probate rules) distributes along the following lines:
The Net Estate
The amount left for distribution to heirs of the decedent after all debts, family protections, taxes, and administrative expenses have been paid.
> A surviving spouse gets the entire net estate if
– the decedent is survived by children who are all his and the surviving spouse’s children, or
– the decedent is not survived by descendants and parents.
> A surviving spouse gets the first $200,000 of the net estate plus three-fourths of anything in excess of that amount
– If parents survive but no descendants survive,
> A surviving spouse takes the first $150,000 of the net estate plus one-half of anything exceeding that amount.
– if the decedent is survived by descendants who are also the descendants of the surviving spouse, and by descendants who are not descendants of the surviving spouse
> A surviving spouse takes the first $100,000 of the net estate plus one-half of anything exceeding that amount
– If the decedent is not survived by any descendants who are also descendant of the surviving spouse but is survived by descendants who are not descendants of the surviving spouse
Share of Descendants
Under the UPC, if no spouse survives but descendants of the decedent survive, the descendants take the entire net estate by “right of representation.” Right of representation, also known as “per stripes” is a known process by which a decedent’s descendants share in an inheritance. Gifts given in this manner are divided according to the number of branches of descendants a person has and not according to how many descendants there are in each generation
Share of Parents
Under the UPC, if a decedent is not survived by a spouse or descendants, the entire net estate passes to the decedent’s parents equally or, if only one survives, to the survivor.
Share of Other Relatives
Under the Code, if a decedent is not survived by a spouse, descendants, or parents, the entire net estate passes to the decedent’s parent’s descendants (siblings of the decedent). If there are no siblings or descendants of siblings, the net estate goes to the decedent’s grandparents or their descendants.