Incapacity Planning

What if, through an accident or illness, you are rendered unable to make decisions for yourself? Appoint the people who will have authority to make decisions on your behalf.

Wills ensure that your wishes with regard to your property are carried out after your death.  Incapacity Planning, on the other hand, ensures that your wishes with regard to your health and financial affairs are carried out during your life, at any time at which you are unable to make decisions for yourself.  For example, if you are injured or unconscious and unable to communicate, or if, through infirmity or age you are no longer able to handle your daily affairs, you will need someone to handle those affairs for you.  In other words, you are “incapacitated.”

Certain documents should be provided for you in order to address these concerns.  Unfortunately, if you wait until you need these documents, it is too late to get them.  Either you are unable to communicate your needs and wishes, or you lack the legal ability to make your wishes formally known.  It is extremely important to put this incapacity planning into place before you need it.

In our estate planning appointments, we will discuss (at a minimum) the five main documents which plan for possible incapacity:

1.   Durable Power of Attorney – This document gives the person you name as your agent the ability to handle your financial affairs.  The powers of this agent can be limited in accordance with your wishes, but are usually very broad.  This person would be able to pay your bills, or your mortgage, if you were unable to handle them yourself due to a hospital stay or mental confusion.

2.   Medical Power of Attorney – This document gives  the person you name as your agent the ability to make health care decisions for you, if you are unable to communicate your wishes.

3.   HIPAA Authorization – the Heath Insurance Portability and Accountability Act (HIPAA) requires doctors and hospitals to maintain protected health information on their patients private.  They are not allowed to share medical files, diagnoses, or treatment decisions with anyone, unless authorized by the patient to give this information to particular people.  This document allows you to designate designate family and/or friends who may inquire into and receive information about your medical condition.

4.   Directive to Physicians – This document is often called a “Living Will.”  It is an expression of your desire regarding the use of extraordinary measures to prolong your life, if being taken off of those life support measures would result in a natural death.

5.   Declaration of Guardian in Event of Future Incapacity – This is not a declaration of guardian for your young children.  In the event that you are rendered permanently unable to handle your affairs or provide daily care for yourself, the court may find it necessary to appoint one or more guardian(s) for you.  The guardian “of the person” will ensure your physical, mental, and emotional needs are provided for.  The same person, or possibly a second person, may be appointed guardian “of the estate,” to handle all of your financial affairs for you.  This document allows you to inform the court who you would desire to have appointed as your guardian(s), and who you may absolutely not want appointed as your guardian(s).