Planning for Incapacity: Lamar Odom’s Medical Emergency Demonstrates the Need for Estate Planning

Several months ago former NBA basketball star Lamar Odom suffered a medical emergency which left him comatose and unable to communicate with his doctors. A media frenzy erupted due largely to Mr. Odom’s relationship with his estranged wife, reality TV star Khloe Kardashian, and the circumstances leading up to Mr. Odom’s incapacity. The headlines in the media, however, also helped start an open conversation about planning for incapacity and the importance of estate planning.

When a person becomes incapable of communicating their healthcare wishes or handling their financial affairs, state law dictates upon whom these legal responsibilities will fall. In Tennessee, for example, such authority will be vested in the person or persons designated in a writing which complies with statutes set forth in the Tennessee Code Annotated.

With regard to healthcare and end of life decisions involving an incapacitated person there are two documents commonly drafted – the durable power of attorney for healthcare (HCPOA) and the living will. Powers of attorney and living wills, unlike a last will and testament, dictate who will manage a person’s finances and make healthcare decisions for them while they are living but unable to act on their own behalf either by choice or incapacity.

The responsibilities delegated and preferences set forth to a representative or agent in one’s HCPOA and living will can vary depending on an individual’s desires. For example, some people customize their HCPOA and living will to set forth their desires to not have to undergo certain types of procedures or treatments, life support, blood transfusions, and organ/tissue donation.

It is also important to note that even if an individual executes a valid HCPOA and living will concerning their end of life preferences, the authority to make the final decisions rests in the authorized agent once incapacity occurs. So, just as it is important to set forth your desires concerning healthcare treatment and end of life decisions, it is also critical that the person or persons you grant this authority to can be trusted to carry out your objectives.

Lamar Odom’s situation displays to us the fragility of life and how a medical emergency can occur when least expected. Regardless of a person’s age or general health, it is important to know someone you trust will have legal authority to protect your interests in the event of a medical emergency.

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