Nobody wants to think about their future involving severe injury, illness, or decline due to advanced age. However, engaging in incapacity planning while healthy can give you and your loved ones the peace of mind that comes with knowing you have a plan in place should the worst occur. Incapacity planning involves empowering trusted family members or friends to manage your affairs if you cannot do so and preparing your assets and estate in case you need expensive long-term care.
Working with an experienced incapacity planning attorney from Berkley Oliver PLLC can provide critical guidance and support. Since 2017, our firm has helped individuals and families across Central Kentucky with their incapacity planning needs. We take pride in assisting our clients with planning for the expected – and the unexpected – to help them prepare for whatever life brings. Contact us today for an initial case evaluation to develop your incapacity plan.
Critical Components of Incapacity Planning
Some of the most commonly used tools in incapacity planning include:
- General Durable Power of Attorney – Through a general durable power of attorney, you can empower a trusted loved one, friend, or advisor to make financial, legal, or medical decisions if you become incapacitated. Although some powers of attorney expire when the person who made them becomes incapacitated, a correctly drafted general durable power of attorney triggers or continues the agent’s authority through the principal’s incapacity.
- Health Care Surrogate Designation or Health Care Power of Attorney – A health care power of attorney allows you to designate someone to make medical decisions for you if you become incapacitated and unable to communicate your wishes regarding medical treatment or end-of-life care. You can also limit the scope of your health care proxy’s authority, such as requiring the proxy to obtain a second opinion before approving specific care.
- Living Will – In a living will, you can communicate your preferences for medical treatment and end-of-life care to your health care proxy, treating providers, and family members. A living will can cover specific medical scenarios, such as when medical providers should attempt resuscitation or whether you want life support, such as a ventilator or feeding tube. Importantly, a Living Will is not the same as a Do Not Resuscitate (DNR) order.
- Living Trusts – Revocable trusts allow you to place assets in a trust for management while retaining control over those assets while healthy. You can structure your trust so a successor trustee can assume control should you become incapacitated.
- Medicaid Trusts – Adults who become permanently incapacitated and need long-term care, such as home health services, community-based care, or assisted living or skilled nursing facilities, may turn to Medicaid benefits to help defray the high costs of long-term care. Medicaid trusts and other planning strategies, such as spend-down or Medicaid-compliant annuities, can help disabled individuals qualify for Medicaid benefits.
Why You Need Incapacity Planning
People frequently consider incapacity planning when faced with specific situations, such as:
- Chronic Illnesses – A person suffering from a chronic illness that may eventually become disabling may engage in incapacity planning to empower trusted family members or friends to handle their affairs should they become incapacitated.
- Cognitive Decline – People in the early stages of cognitive conditions like dementia or Alzheimer’s disease may undertake incapacity planning before the symptoms of their condition worsen.
- Sudden Injury or Stroke – People who suffer a stroke or disabling injuries may engage in incapacity planning to ensure they have their affairs in order and to nominate someone to act on their behalf if their condition worsens.
- Aging – As people age, they may consider incapacity planning to empower adult children or other trusted loved ones to help with long-term care and maintain independence as long as possible.
Consequences of Not Having an Incapacity Plan
Not having an incapacity plan as you age or if you suffer an unexpected disabling injury or illness can lead to various adverse consequences, such as:
- Financial Mismanagement – Not empowering a trusted loved one to manage your affairs can lead to financial consequences like frozen accounts or unpaid bills.
- Family Conflicts or Disputes – When you don’t select someone to act on your behalf through a power of attorney and do not leave instructions for your wishes and preferences regarding the management of your medical, personal, and financial affairs, your family members may end up in disputes over who should take responsibility for your care or what you would have wanted if you cannot communicate your wishes.
- Need for Guardianship or Conservatorship – Without an incapacity plan in place, your family may need to seek court approval for guardianship or conservatorship to authorize a family member to manage your medical, personal, financial, and legal affairs.
Updating Your Incapacity Plan
As with all forms of estate planning, you should not leave your incapacity plan in a drawer until you need it. Instead, you should periodically review and update your incapacity plan to address changes in the law or your circumstances and wishes. For example, you may want to change the person you’ve appointed under a power of attorney. Your preferences regarding medical treatment or end-of-life care can change over time or in response to changes in your health. Events that should motivate you to review your incapacity plan include:
- Marriage or divorce
- Your children reaching adulthood
- Changes in your financial situation, such as substantial growth in personal or family wealth
- Changes in your health, such as experiencing severe injuries or developing chronic illnesses
How Can an Attorney Help with Incapacity Planning
An experienced estate planning lawyer from Berkley Oliver PLLC can help you develop an incapacity plan tailored to your circumstances and wishes by:
- Sitting down with you to discuss your current situation and understand your concerns, needs, and preferences
- Identifying incapacity planning tools tailored to your specific goals
- Explaining your legal options to help you make informed choices for your incapacity plan
- Guiding you through the process of establishing your chosen estate planning tools, including considering who to select to serve as your agent under your power of attorney
- Helping you properly execute your plan documents to ensure their validity
- Working with you throughout the years to review and revise your incapacity plan in response to changing circumstances in your life
Contact Our Firm Today
Starting the process of incapacity planning early, even when healthy, can help you avoid stress and anxiety by knowing you have made arrangements for your future, especially if the worst should occur. Don’t wait to talk to an attorney about incapacity planning. Contact Berkley Oliver PLLC today for a free case evaluation to learn more about your legal options.