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
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
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.
A healthcare directive stipulates your desire regarding
medical treatment in advance. This tool ensures compliance
with your wishes for medical treatment should you become
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
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.
Call us for your free consultation and find out what your
options are and how you can protect those you love.