6 Important Estate Planning Considerations – Part 1: Incapacity

This is part of a series of 6 blogs on important estate planning considerations. I’ll intersperse these blogs with other timely blogs.

Often, when people think of “estate planning” they think it’s a task only for the old, the rich, or the infirm. But, that simply is not true. Estate planning is something you do when you care, regardless of your age, wealth, or health.
One thing to consider in your estate planning is your own possible incapacity. Nobody wants to consider they may become incapacitated. But, many people, including many young and seemingly healthy people, become incapacitated each year. For that reason, it’s important to consider your possible incapacity and what you want to have happen in that event, however unlikely you may consider it to be.

You collapse while at a picnic with family and friends. What would happen in this emergency situation?

Who would make medical decisions for you?

You need someone to make medical decisions for you during your incapacity. An agent under a Health Care Power of Attorney can make those decisions for you when you are unable to make them for yourself. Such a power is often combined with a Living Will, which expresses your wishes regarding end-of-life decisions. Sometimes, the combined document may be called an Advance Health Care Directive. The Supreme Court has made it clear that only a clear expression of intent of your choice regarding end-of-life decisions will be followed.

So, while nobody wants to consider the possibility they might face such a situation, it’s important to express what you want in those circumstances. Of course, incapacity is usually not an end-of-life situation. Typically, it’s of short-term duration and you regain the ability to make your own decisions before long. But, it’s still important to have someone to make decisions for you when you cannot. Having things settled in advance allows for the focus to stay on what’s important: you and your health.

Who Would Manage Your Assets?

Next, how would your financial life continue? Who would be able to use your money to pay your mortgage and other bills? A Durable Power of Attorney for property can allow the person you designate, your “agent,” to step in and act for you even when you cannot act for yourself because of your incapacity. You can name successor agents, too. That way, in case your first choice is unable or unwilling to serve as your agent, someone else can step into that role.
Upon your incapacity, your agent simply provides proof (such as a physician’s letter) to your bank or other institutions. Then they can write checks on your account and take other actions necessary to keep your financial life in order.

Assets in your trust can be handled even more easily upon your incapacity. Your successor trustee, whom you’ve named in your trust, simply steps into the role of trustee upon providing proof of your incapacity to the institution, such as the bank. (Typically, the transition in incapacity is even smoother for a successor trustee to take over than for an agent under a power of attorney.)

Nobody wants to consider incapacity. But, as we live longer lives, it’s increasingly likely that we will have one or more periods of incapacity during life. Incapacity is difficult emotionally and physically, both on the individual and those around them. But, a seamless estate plan can help ease the logistics and emotional strain on both you and those around you. With the plan in place, those around you can focus on taking care of you and you can focus on recovery.

Stephen C. Hartnett, J.D., LL.M.
Director of Education
American Academy of Estate Planning Attorneys, Inc.
9444 Balboa Avenue, Suite 300
San Diego, California 92123
Phone: (858) 453-2128
www.aaepa.com