Preparing for the Unforeseen: A Guide to Including Incapacity Planning in Your Estate planning

Roy Y. Gagaza

July 6, 2023

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Estate planning is much more than allocating wealth after one’s passing. It also encompasses preparing for circumstances that might impair an individual’s capacity to make decisions regarding their finances, healthcare, and other critical aspects of life. Such planning, often overlooked, ensures continuity and desired control even in the face of mental or physical incapacitation. Incapacity planning as part of an estate plan aims to alleviate burdens on loved ones during difficult times and ensures that the individual’s wishes are respected. But how exactly do we plan for incapacity? Below are some crucial steps to guide you through the process.

Understand What Incapacity Planning Is

Incapacity planning is preparing for a time when you may be unable to make important decisions due to a physical or mental disability. It involves making key medical treatment preferences, financial management, and personal care decisions. This planning allows for a seamless transition of decision-making to a designated person, ensuring your preferences are upheld even when you can’t express them personally.

Discuss and Define Your Wishes

Start by thinking about your preferences for medical treatment, financial management, and personal care in case of incapacity. Consider questions like: Who do you trust to make medical decisions on your behalf? What kind of medical treatment would you want or want to avoid? Who should manage your finances? Discussing your wishes with family members is important to ensure everyone understands and respects your decisions.

A healthcare proxy or a durable power of attorney for health care is a legal document that lets you designate someone you trust to make healthcare decisions for you in case you cannot do so. This person will have the legal authority to follow through on your healthcare preferences as stipulated in your living will or advance healthcare directive.

Implement a Durable Power of Attorney for Finances

Similarly to the healthcare proxy, a durable power of attorney for finances enables you to appoint a trusted individual to manage your financial affairs when you cannot. This document can give the designated person the power to pay bills, manage investments, sell property, and ensure that your financial affairs are in order.

Create a Living Will or Advance Healthcare Directive

A living will, or advance healthcare directive, outlines your wishes regarding end-of-life care and other medical decisions. It comes into effect only when you cannot communicate or make decisions. This document can specify whether you want life-sustaining treatments, such as mechanical ventilation, feeding tubes, or resuscitation.

Consider a Revocable Living Trust

A revocable living trust lets you control your assets while providing a seamless management transition upon incapacity. As the trust’s grantor, you can appoint yourself as the trustee and name a successor trustee who would take over upon your incapacity or death.

Regularly Review and Update Your Plan

Like any aspect of estate planning, your incapacity plan should be reviewed and updated regularly, especially after major life events like a marriage, divorce, birth of a child, or a significant change in health. These revisions ensure your plan aligns with your current wishes and circumstances.

Incapacity planning might seem daunting but remember; it’s a valuable part of your estate plan that protects your interests and provides peace of mind. As always, working with a qualified attorney specializing in estate planning is recommended to ensure all legal requirements are met, and your wishes are accurate.

Captured. It’s not just about preparing for the worst but empowering your loved ones to act in your best interest when you need it most.