Have You Planned for Your Possible Incapacity?

Where to Start When Planning for Incapacity

Many people think having an Estate Plan means having a Will. But Estate Planning is as much about planning for our lives as it is about planning for our death. So a Living Will is a crucial part of your Estate Plan.

When planning for your potential incapacity, the first thing you should think about is, “If I become incapacitated and unable to care for myself, whom do I want to make decisions for me?” Specifically, you’ll be choosing the person you want to make your healthcare, financial, and legal decisions for you until you either recover or die. So the first, and most important, thing to know is that you must choose someone.

If you’ve paid any attention to the news lately, you probably heard about Britney Spears and the problems she is having with her dad as her conservator. That happened because Britney didn’t legally name someone to make decisions during her potential incapacity. Because Britney didn’t have proper estate planning documents naming a guardian, the court chose one for her.

Without a thorough estate plan that nominates a guardian if you become incapacitated, the court will appoint a conservator to make financial and legal decisions for you. Often, as it was with Britney, this person is a family member. But being a family member does not always mean the court-appointed person is the person you would nominate.

Create a Comprehensive Plan for Incapacity. Situations like the one in which Britney Spears finds herself can be avoided with proper estate planning. Consider your circumstances when you think about your estate plan. For example, you may want to withhold treatment if you are incapacitated with a terminal illness, but what if you’re pregnant? The decision about whether to “pull the plug” is suddenly a much more difficult decision.

Your incapacity plan, which is a part of your larger estate plan, should include an array of different planning tools rather than a single document.

Durable financial power of attorney: A document that gives your agent, someone you choose, immediate authority to make decisions related to managing your financial, business, and legal matters.

Medical power of attorney: An advance directive that grants your surrogate authority to make medical decisions for you in the event of your incapacity.

Living will: An advance directive that provides specific guidance about how your medical decisions should be made during your incapacity. Often, a medical power of attorney and a living will are combined into a single document.

Timing Is Everything. Your incapacity plan must be created before you become incapacitated. You must be able to clearly express your wishes and consent for these planning documents to be valid. An unexpected accident or illness may happen at any time, so don’t wait. Talk to a lawyer who focuses on estate planning to get started on your comprehensive plan.

And if you already have an estate plan, review it regularly and make updates as often as necessary. In addition, check your beneficiary designations on your retirement accounts and life insurance policies to ensure your beneficiary designations are updated.