Why plan for incapacity?

Incapacity planning deals with the notion of our being unable to make our own decisions, unable to take care of ourselves, and having to depend on others for our most basic needs.  People often shy away from such topics, and sometimes have a tendency to postpone incapacity planning.

Although we all hope that we will never face incapacity, it is likely that many of us will during our lifetime.  As it is unrealistic to pinpoint when this will occur, planning is necessary to protect ourselves and our family.

Failure to plan for incapacity can cause a family to undergo a significant amount of financial and emotional stress.  Bill payment, record keeping, asset management, access to family funds, and business decisions can be greatly compromised when one becomes incapacitated.  If proper planning is performed, the adverse financial and emotional effects of one’s capacity can be significantly reduced.  If proper planning is not performed, the result is generally time consuming and expensive.  A guardianship or conservatorship court proceeding will need to be initiated, and it is up to the court who will take care of you and your assets and how your affairs will be managed.

Protect yourself and your family by developing an incapacity plan that meets your unique needs.

How can an elder law attorney help?

Elder law attorneys are often dealing with clients who are in need of planning for themselves and their loved ones.  Incapacity protection is becoming more critical as people are living longer, suffering from more debilitating diseases, and are requiring more long term care than ever before.  Elder law attorneys understand the tools available to protect individuals from incapacity, and can help you develop a plan to meet your needs.

How do you plan for incapacity?

Incapacity planning consists of actions taken to appoint individuals to take care of you and your affairs should you be unable to do so.

The elder law attorney has a number of tools that can help you achieve your objectives.  Your unique situation will be assessed, and you will be given advice on the tools most appropriate to meet your needs.

Common tools that may be discussed include:

• Power of attorney for financial affairs
  A power of attorney is given by you to a trusted family member or friend so that they can act on your behalf. These individuals have a fiduciary duty to act in your best interest.  This power can be granted immediately, or only upon your incapacity
   

• Power of attorney for health care
  A healthcare power of attorney can also be created to appoint someone to make your medical decisions if you are unable to do so.
   

• Healthcare directive
  A healthcare directive stipulates your desire regarding medical treatment in advance.  This tool ensures compliance with your wishes for medical treatment should you become incapacitated.
   

• Living trust
  A trust can provide specific instructions for how you want your assets managed should you  become incapacitated or pass away.  You can appoint a trustee who will manage the assets.  The trustee has a fiduciary duty to follow the instructions set forth in your trust.

What is your next step?

How can you avoid you and your family having to face the devastating situation of your becoming incapacitated, and your family not having the authority to take care of you and your affairs?
 

To avoid such problems, it is recommended that you talk to a legal professional so that you can understand the options available to you and your family.  It is important that you receive this information so that your assets can be protected, and that you and your family are prepared should you become incapacitated.