While most of us do not want to consider or think about the possibility of someday becoming incapacitated, it is a reality in today’s world.  Incapacity, for purposes of estate planning, is the inability to make decisions for oneself in a legal capacity.  There are times when incapacity is either permanent or temporary. Causes of incapacity could be a heart attack, stroke, injury or the mental faculties are simply declining.

Are you prepared for these possibilities?  We receive numerous calls from family members who want to have their incapacitated parent now set up their estate plan before they die.  The problem is that it is just too late.  Many believe that they can wait until they get older and plan at that time as incapacity is so far off in the future.  However, life can take crazy turns with injury, heart attacks, etc.  It is not only the elderly who deal with mental incapacity.  Should you not plan, family members will be forced to go through the expensive and arduous task of petitioning a court to give them the power to handle your affairs.

So what do we do now?

1.    Power of Attorney for Assets.  By naming an agent and having a Power of Attorney for Assets, you can have chosen someone who will handle your financial affairs on your behalf during your incapacitation.  Should it be only a temporary incapacitation, you will take over your financial affairs again once you are able.

2.    Advance Health Care Directive.  An Advance Health Care Directive will allow you to choose someone to make health care decisions for you should you be unable to make them for yourself.  Additionally, the document will allow you to make some health care decisions ahead of time when you are capacitated that will be enforced should you become incapacitated.

3.    Living Trust.  A properly drafted Living Trust can also give the Successor Trustee (the person who will fill in for you if you become incapacitated) the powers to manage your estate (assets that are included in your Living Trust).  The Living Trust can also include detailed instructions to the new Trustee that are not often found in a Power of Attorney for Assets making it a powerful way to protect your estate during incapacitation.