Securing Your Wishes: Estate Planning for Possible Incapacity

Roy Y. Gagaza

November 9, 2023

Securing Your Wishes: Estate Planning for Possible Incapacity - Roy Y. Gagaza

Estate planning often focuses on what happens after we pass away. However, planning for potential incapacity is an equally important aspect. The inability can arise from various causes, such as illness, injury, or mental decline, rendering an individual unable to manage their financial, legal, and healthcare decisions. Here’s how to comprehensively prepare for an event in your estate plan.

Understanding Incapacity

Incapacity means that a person is legally unable to make certain decisions for themselves. The criteria for determining incapacity can vary, but it typically involves an inability to understand the nature and consequences of one’s findings due to a mental deficit or illness.

Legal Documents to Consider

An effective estate plan includes legal documents that ensure your wishes are honored if you become incapacitated.

Durable Power of Attorney: This document allows you to designate an agent to make financial and legal decisions on your behalf. Unlike a regular power of attorney, it remains in effect if you become incapacitated.

Health Care Proxy or Medical Power of Attorney: Similar to a durable power of attorney, this allows you to appoint someone to make healthcare decisions for you if you cannot.

Living Will: Also known as an advance healthcare directive, this outlines your wishes for medical treatment in situations where you cannot communicate them yourself.

Revocable Living Trust: This allows you to manage your assets while alive and can be altered or revoked at any time. If you become incapacitated, your chosen successor trustee will manage the trust assets on your behalf.

Choosing Your Representatives Wisely

Selecting the right people to act on your behalf is crucial. They should be trustworthy, can act decisively, and ideally, be familiar with your values and wishes. It’s also wise to converse with these individuals about your expectations and to provide them with copies of the relevant documents.

Regular Review and Updates

Life changes, and so might your decisions regarding incapacity. Regularly reviewing and updating your estate plan ensures it aligns with your current wishes and circumstances.

Additional Considerations

HIPAA Authorization: This allows your chosen representatives to access your medical records, making informed decisions about your healthcare easier.

Emergency Information: Keep a list of contacts, health conditions, medications, and legal documents, and ensure your representatives know where to find them.

Discuss with Loved Ones: Communicate your plans to family members or close friends to avoid confusion or conflict later on.

Consult Professionals: An attorney specializing in estate planning can help tailor your plan to your specific needs and ensure all legal bases are covered.

Incorporating incapacity planning into your estate plan protects not just your assets but also your well-being. With the proper documents and people in place, you can rest assured that your affairs will be handled according to your wishes, even if you cannot oversee them yourself. It’s a thoughtful and responsible way to provide you and your loved ones peace of mind.