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Planning for Incapacity

PLANNING FOR INCAPACITY

Estate planning is not just about distributing your assets after death, but also considering the possibility of incapacity. By working with an incapacity planning attorney, you can specify how your healthcare and finances will be managed in case of poor mental or physical health in the future. Here are a few simple tools for incapacity planning.

Planning-for-Incapacity

Power of Attorney

As part of financial planning for incapacity, a power of attorney document grants an attorney-in-fact, whom you nominate, the authority to make financial decisions on your behalf. Powers of attorney can be “springing,” meaning that your nominee’s authority as attorney-in-fact only begins after you become incapacitated, or “immediate,” meaning that your nomination takes effect immediately and remains effective should you become incapacitated.

Advance Health Care Directive (AHCD)

As part of legal planning for incapacity, an advance health care directive enables an agent for health care, nominated by you, to make medical decisions on your behalf. Additionally, the directive can include your preferences for end-of-life decisions and post-death arrangements, such as whether to prolong your life using artificial means and whether you wish to donate your organs. This falls under the purview of elder law planning for incapacity.

Nomination of a Conservator

Estate planning also allows you to nominate someone to serve as your conservator if a court finds that a conservatorship is necessary and appropriate. A “conservatorship” is a legal determination that a person should not make medical or financial decisions for him or herself, or is substantially unable to resist fraud or undue influence. As a result of this determination, the court appoints a “conservator” to make decisions for that person, giving preference for appointment to that person’s nominee. This nomination can be made in a separate document, but is typically included as a provision of the advance health care directive or power of attorney.

The consequences of failing to nominate an attorney-in-fact, health care agent, or conservator in advance of incapacity can be serious. Having an attorney-in-fact and health care agent can eliminate the need for a court-supervised conservatorship should you become incapacitated. In the event a conservatorship is still necessary, nominating a conservator greatly increases the likelihood that the person you want to serve as your conservator will be appointed. Proper planning for incapacity can potentially save tens of thousands of dollars in legal fees, saving money for your care and for your heirs.

Conclusion

Incapacity can strike anyone, regardless of age or health, which is why it’s important to have a plan in place. By working with an experienced elder law attorney, you can create a comprehensive plan for managing your healthcare and finances in case of incapacity. Don’t wait until it’s too late, take action now to protect yourself and your loved ones. Contact us today to learn more about planning for incapacity and how we can help you create a plan tailored to your specific needs.

Loren Barr
by Loren Barr
Updated: April 18, 2023

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