Elder Law – Planning for Incapacity

by Jen Green, Burch Law

No one wants to think about the possibility of becoming incapacitated. But as estate planning lawyers are all too aware, it can happen to anyone at any time. If you don’t plan for incapacity, incapacity may plan for you. It is an especial concern now that modern medicine has vastly lengthened the quantity of life, but not necessarily the quality. Elder law isn’t just for the elderly; we all need to plan ahead for ourselves and our loved ones.

But even when we don’t want to plan for incapacity, most of us are opinionated about whom we want to have access to our stuff. And who we will let make decisions for us.

The time to put systems in place to ensure that your wishes are followed in these matters is when you still have the capacity to make decisions under the law. Just because the standard of legal capacity to make a Will is pretty low is no reason to put off necessary planning. The temptation to procrastinate is great, but better to use your procrastination credits on that long-deferred plan to clean out the garage or those vaguely disturbing dark corners in the back of your closet that are starting to mysteriously expand and make strange mewling sounds….

Anyway, back to the plan: an important component of any plan to legally cement your wishes in place is the statutory durable power of attorney (your financial power of attorney). This document will allow your most trusted relatives and/or friends to manage your finances for your benefit while you are incapacitated, whether from a temporary hospital stay or something more long term. It needs to be durable to remain in effect after you become incapacitated (otherwise it basically goes away the moment you become incapacitated). And if something happens such that you can’t manage your finances as usual, you will need someone to access those funds to pay for your bills and your care.

You will also need a medical power of attorney and the accompanying release that allows a trusted loved one to make medical decisions and access your medical information.

Additionally, you will also want to be the one to choose a guardian in the event you become incapacitated. You don’t want this choice made by a court or by a stranger. Always better to plan ahead and set down your wishes in a valid legal document. If you wouldn’t let someone touch your money or make a decision for you now, you sure don’t want them stepping in later when you have no say in the matter. Guardianship comes up in many other contexts than elder law, because incapacity can affect people at all stages of life.

We can’t emphasize enough the importance of planning ahead. Our estate planning lawyers can help guide you through thinking about your choices and choosing the best options for your lifestyle. We can prepare the powers of attorney, directives, trusts, Wills, and other documents you will need to secure your wishes in the face of future eventualities.
If you have a ne’er do well relative or friend who has their eye on your estate, don’t let failure to plan provide their golden opportunity. Stop them now. You can get the last laugh. But it requires proper planning. We can help. Contact our estate planning lawyers to set up a no obligation consultation.