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Guide to Incapacity Planning: Protecting Yourself and Your Estate

Incapacity planning is a crucial aspect of managing your estate and ensuring that your wishes are honored if you cannot make decisions for yourself. This article will examine the various components of incapacity planning, offering comprehensive advice for anyone looking to secure their future.

What Is Incapacity Planning?

Incapacity planning involves preparing legal documents and making decisions in advance should you become unable to manage your affairs due to illness, injury, or other reasons. This process ensures that your financial, health and personal preferences are respected and handled according to your wishes.

Understanding the Basics

Incapacity planning isn’t just for the elderly; unexpected life events can happen at any age. It’s about taking control of your future, regardless of what may happen. This planning includes choosing who will make decisions on your behalf and outlining your wishes for medical treatment and financial management.

The Importance of Early Planning

The best time to plan is now. Waiting until you’re incapacitated leaves your loved ones with difficult decisions and could lead to court involvement. Early planning ensures that your wishes are clear and legally documented.

What Is a Power of Attorney?

A Power of Attorney (POA) is a legal document allowing you to appoint someone to handle your affairs if you cannot. There are different types of POAs, each with specific functions.

Financial Power of Attorney

This document grants someone authority to manage your financial matters, from paying bills to handling investments. Choosing someone trustworthy and capable of managing your finances effectively is essential.

Medical Power of Attorney

Also known as a healthcare proxy, this allows someone to make medical decisions on your behalf. Discussing your wishes with this person is crucial, ensuring that they understand your preferences for medical treatment.

What Role Does a Trust Play in Incapacity Planning?

A trust is a legal arrangement where a trustee holds assets on behalf of a beneficiary. Trusts can be particularly useful in incapacity planning.

Revocable Living Trust

This type of trust allows you to maintain control over your assets while alive and capable. In the event of incapacity, a successor trustee can manage the trust assets according to your wishes.

Using Trusts to Avoid Guardianship

By setting up a trust, you can avoid needing a court-appointed guardian or conservator, since the trust’s instructions will guide how your assets are managed.

How Can I Ensure That My Medical Wishes are Respected?

Documenting your healthcare preferences is a vital part of incapacity planning. This ensures that your medical treatment aligns with your values and wishes.

Living Wills and Healthcare Directives

A living will or healthcare directive outlines your wishes for medical treatment, including end-of-life care. This can include specific instructions on issues, like life support and feeding tubes.

HIPAA Authorization

The federal Health Insurance Portability and Accountability Act (HIPAA), known as the Privacy Rule, gives individuals rights over their health information and sets rules and limits on who can look at and receive a person’s health information. A HIPAA authorization is a legal document that enables your healthcare providers to share your medical information with the individuals you’ve designated.

Healthcare Surrogate or Medical Agent

While the HIPAA authorization allows chosen individuals to receive or view your healthcare information, a healthcare surrogate or medical agent is an authorized individual who can make decisions for your medical care when you cannot.

What Happens If I don’t have an Incapacity Plan?

Without a plan, your family may face legal hurdles and difficult decisions. They may need to seek guardianship or conservatorship, which can be time-consuming, expensive, and stressful.

The Risk of Court Intervention

Without proper documents, a court may appoint someone to make decisions for you who might not align with your preferences. This can lead to family disputes and added emotional stress.

Ensuring Your Wishes are Followed

An effective incapacity plan helps avoid these issues, ensuring that your wishes are known and respected and that someone you trust makes decisions on your behalf.

How Do I Choose the Right People to Act on My Behalf?

Choosing the right individuals to make decisions for you is crucial. They should be people you trust, who understand your values and are willing to act in your best interests.

Selecting a Health Care Proxy

Your healthcare proxy appointee should understand your medical preferences and be willing to advocate on your behalf, even under challenging circumstances.

Choosing a Financial Proxy

Selecting someone with financial acumen and integrity is essential for managing your financial affairs. This person should be organized, responsible and understand your financial goals well.

Can Incapacity Planning Reduce Estate Taxes?

While incapacity planning primarily focuses on managing your affairs during life, it can also affect estate taxes. Proper planning can help manage your estate efficiently, potentially reducing tax liabilities.

Summary: Key Points to Remember

  • Start Early: Don’t wait until it’s too late to start planning.
  • Appoint Trusted Individuals: Choose people you trust to make decisions on your behalf.
  • Document Your Wishes: Clearly outline your healthcare and financial management preferences.
  • Consider a Trust: Trusts can provide a streamlined way to manage your assets if you become incapacitated.
  • Legal Advice: Consult an estate planning attorney to ensure that your plan meets your needs and complies with legal requirements.

Incapacity planning is not just about protecting your assets; it’s about ensuring your wishes are honored and providing peace of mind for you and your loved ones. With the right planning, you can safeguard your future, no matter what it holds.

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Do You Need a Power of Attorney as Part of Your Estate Plan?

When created by an experienced estate planning attorney, a Power of Attorney (POA) is a legally binding estate planning document providing the person (principal or grantor) the ability to appoint someone else to act on their behalf in legal and financial matters. A POA can be created for any adult, according to the article “Choose wisely when selecting an agent for a power of attorney” from News Tribune.

POAs are generally state-specific, meaning they must adhere to the state’s laws where the grantor is a resident and follow their state’s law. The laws differ from state to state, so a local estate planning attorney is necessary.

The POA is usually created as part of a comprehensive estate plan. It’s best to do this before a person becomes ill or when a disability occurs. Everyone should have a POA, so someone else can manage their affairs if needed.

The person assigned to represent the grantor is known as an “agent” or an “attorney-in-fact.” They serve as an agent under the terms of a POA.

There are several different types of POAs. Some become effective the moment they are executed, which means they are signed with the required witnesses present. Others spring into effect upon a specific event or an expressed date identified in the POA and are called “Springing POAs.”

Some POAs are used for short-term situations, such as if a person is undergoing surgery and won’t be able to take care of their own business for a period of time. Regardless of the length of time, the agent is a fiduciary, meaning they are required by law to put the grantor’s interests ahead of their own. They need to be responsible, trustworthy and a good communicator. They must be 18 or older.

An estate planning attorney will help you determine whether the person you are considering naming your agent is a good choice. Someone who is a convicted felon, suffers from chronic financial issues, or is unable to manage their own life successfully is not a good candidate. Making this choice wisely avoids many future difficulties. For many people, their agent is a parent, adult child, or close family friend.

A very important step in the process is to ask the person ahead of time if they are comfortable acting as an agent on your behalf.

You may appoint multiple people to serve as your agent. However, to avoid possible conflict; it would be wise to have the POA documents express specific responsibilities for each person. If the agents disagree, it will be difficult for them to get tasks completed.

There are several types of POAs, and their powers are enumerated in the document. A general, durable, or limited POA includes financial and healthcare POAs. A durable POA is in effect whether the person is alive and well or incapacitated. A Limited POA can be used to give someone a specific purpose. The healthcare POA is used to make medical decisions on behalf of the grantor.

A health emergency is not the time to discover you don’t have a healthcare POA. Without a POA, family members or loved ones must go to court to obtain authority to address financial matters and make medical decisions. Instead, have your estate planning attorney create the POA documents needed to meet your needs.

Reference: News Tribune (Jan. 8, 2024) “Choose wisely when selecting an agent for a power of attorney”