Can I Prepare for My Own Incapacity?

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You should prepare for possible incapacity.

No one can predict exactly what will happen to them in life.

Everyone is born.

Everyone dies.

What happens in between could include great happiness and also terrible tragedy, and usually a bit of both.

According to a recent The Press-Enterprise article titled “Planning ahead for incapacity helps you and family,” you also should plan for incapacity.

Incapacity planning is essential.
Failing to plan for incapacity can add significant stress to your family.

What is incapacity?

Each state has its own definition.

In general, it means an adult individual is unable to make his or her own decisions or perform certain legal acts.

Having a mental or physical disorder does not automatically translate to incapacity.

Instead, a medical professional or a court must declare the individual incapacitated.

Having proper legal planning in advance of such a possibility should be a priority for everyone.

What should you do?

You should work with an experienced estate planning attorney to create a durable power of attorney.

What is a durable power of attorney?

This fundamental legal document grants authority to someone to serve as your agent to make financial and legal decisions on your behalf while you are still alive.

A power of attorney can come in several forms and perform different functions.

A “springing” power of attorney only takes effect when someone has been declared incapacitated, as opposed to an “immediate” power of attorney that takes effect upon its execution.

A power of attorney can grant broad authority (a “general durable power of attorney”) or only allow for certain actions to be taken (a “special durable power of attorney).

For example, you may receive a dementia diagnosis.

Although you may not yet be incapacitated, you may want your agent to manage your finances and pay bills on your behalf.

Before choosing an agent, you should remember that the durable power of attorney gives another person significant control of your assets.

Although the agent technically has a fiduciary duty to act in your best interests, you must select a trustworthy and responsible individual.

In some instances, your first choice may be unable to perform these duties.

Consequently, be sure to name another person as an alternate agent .

Your durable power of attorney expires when you expire.

And, interestingly, when you expire is the only time a last will and testament can have any legal authority.

As a result, you will need to name an executor in your last will to handle your affairs when you die.

Although a durable power of attorney helps you protect your financial situation from incapacity, you also need to have proper medical planning.

How do you do this?

Medical incapacity planning includes an advance health care directive, which itself includes a health care treatment directive and a durable power of attorney for health care decisions.

With this legal document you can provide instructions on the type of care you wish to have (or not have) and appoint a trusted person to make health care decisions on your behalf.

These are especially important during the COVID-19 pandemic because you may require ventilation or feeding tubes for a time.

You never know when you or your loved ones will be faced with incapacity so you should prioritize working with an experienced estate planning attorney to get your affairs in order.

Reference: The Press-Enterprise (July 19, 2020) “Planning ahead for incapacity helps you and family”