Although Americans are living longer than ever, far too few of them plan for contingencies that could strike at any moment. Life is unpredictable, and the possibility of becoming incapacitated due to illness or injury is a reality we must all consider. A serious accident or illness could render someone legally incapacitated and incapable of making critical decisions. Failing to plan for incapacity could leave your spouse and children ill-prepared for how to handle these exigent circumstances.
Incapacity planning is not just for the elderly. Accidents and sudden illnesses can affect anyone at any time. Without a proper plan, your family may face legal challenges, financial strain, and emotional distress. Our goal is to help you establish a clear and comprehensive plan to avoid these difficulties and ensure your preferences are honored. The time to plan for incapacity is now. Retaining knowledgeable legal counsel is the first and most important step you can take to prepare. Count on the estate planning attorneys of Capstone Legal Strategies to guide you in this process.
The Basics of Incapacity Planning
There may come a time when, due to accident, illness, or some other debilitating condition, you will become incapacitated. In the absence of proper planning, your loved ones will neither know how nor have the legal authority to act on your behalf. For instance, you will not be able to conduct banking transactions, decide how your estate assets will be distributed, or make healthcare decisions. A relative cannot stand in your place without the proper documentation.
This is where incapacity planning proves essential to your well-being. It is the use of various legal instruments such as powers of attorney that convey your personal, financial, and health care preferences. With a comprehensive incapacity plan in place, your loved ones can make decisions that accurately reflect your wishes, values, and needs. This avoids passing the burden to your family while saving the necessity of other legal proceedings, such as guardianship hearings.
Incapacity Planning Documents That Every Individual Needs
An experienced estate planning attorney can devise a plan that prepares you and your family for the day when you have diminished mental faculties and physical abilities. Every such plan is unique, but will generally include the following elements:
Durable Power of Attorney
A durable power of attorney is used to manage the principal’s financial affairs by designating an agent to make decisions during the principal’s incapacity. Such financial matters include:
- Paying income and property taxes
- Paying the mortgage and other bills
- Accessing bank, investment, and other accounts
- Collecting payments that are owed
- Conveying real property
The durable power of attorney, or DPOA, is limited to financial matters; other instruments such as those mentioned below are used to handle the principal’s healthcare matters.
Medical Power of Attorney
Also known as an advance directive, this instrument authorizes an agent to make healthcare decisions for the principal during incapacity. It can include a directive for psychiatric care as well. An agent can make nearly any medical decision that you could make, with some limitations (for instance, the agent cannot have you committed to a mental health institution). It can be as simple or as detailed as you would like, so speak with an attorney about the terms you wish to include.
Although this document is legally effective at the time of execution, it does require that a doctor certify in writing that the principal is unable to make decisions for him- or herself. At that point, the agent can begin making health-related decisions for the principal. It can be revoked assuming that the principal has the requisite legal capacity. One way to do so is to execute a new power of attorney that negates all prior instruments.
Living will (Advance Directive)
This instrument is similar to a medical power of attorney but is more concerned with life-ending or life-extending treatments. If an individual becomes incapacitated and is diagnosed with a terminal condition, the living will can be used to instruct your doctors to administer, withdraw, or withhold specific medical treatments that can indefinitely extend your life.
It is recommended that an individual have both a medical power of attorney and living will to cover all health situations that may arise during incapacity.
Will and Trust
While you are executing the above documents, do not neglect the opportunity to create your last will and testament and possibly a trust. In the event your incapacity results in death, you will want to make sure your estate assets are distributed in accordance with your wishes. A last will accomplishes this, and it can also be used to name a guardian for minor children. Meanwhile, a trust can provide for the financial support of your loved ones without the need for probate.
How an Attorney Can Help
A knowledgeable estate planning lawyer can discuss your objectives and concerns with respect to incapacity and related matters. Your attorney can help you draft legally binding documents that effectuate your wishes and include specific terms that match your values and protect your interests. Every estate planning document has its own requirements as far as contents and legal formalities. A lawyer will assist in drafting and executing these instruments so they are valid.
Additionally, an attorney can help you select the right individuals to serve as your agent, executor, and trustee. These should be reliable adults whom you trust to make critical decisions affecting your finances, property, health, and life. Although we cannot select these individuals for you, we can provide guidance on how best to choose them.
Contact Our Houston Incapacity Planning Attorney
At Capstone Legal Strategies, we work hard to ensure our client’s estate planning needs are addressed in a way that brings them and their families peace of mind. Developing a personalized incapacity plan is one crucial component of a broader estate plan. Connect with our team to begin preparing for your future today.