Estate Planning: Why You Need An Incapacity Plan

If asked why you need an estate plan, you probably know all the standard answers: to distribute your assets according to your wishes, to avoid probate, to appoint a guardian for minor children, and so on. You know that the primary goal of estate planning is to protect your family and your assets. But sound, thorough estate planning doesn’t end there.

Your estate plan should also include an incapacity plan because it should do more than just provide for the financial well being of your loved ones. Without an incapacity plan, your loved one’s may have to suffer the anguish of making tough medical and healthcare decisions for you. And it isn’t just for elderly people – you never know what this precarious life holds in store for you.

Two Main Reasons for an Incapacity Plan

1. Financial Conservator ship

If you become incapacitated in any way and are rendered unable to make your own decisions – say, by a major stroke or Alzheimer’s – you will no longer be able to take care of your financial affairs. And in that case, someone else will have to pay your bills, manage your assets/investments, and file your taxes. Your incapacity plan will ensure that the person you choose yourself and not someone appointed by the court will handle these matters. But if you don’t have an incapacity plan in place, your loved ones will likely have to go to court to get conservator ship over your finances – and at a time when they are already under enough stress.

2. Health Care Decisions

An incapacity plan will also relieve your loved ones of the burden and anguish of having to make major medical and health care decisions for you. Instead, you will have already clearly delineated your healthcare preferences in the incapacity plan, and all they have to do is carry them out. Without an incapacity plan and in the case of a major accident or sudden incapacitating illness, your family members may even be denied access to your medical information – information they may need to make the best health care decisions for you.

Five Recommended Documents for an Incapacity Plan

An incapacity plan requires certain documents in order to be fully functional and binding. While some of these should be part of estate planning as a matter of course, it’s still good to be aware of them.

1. Living Trust – A revocable living trust is a very good estate planning instrument in the event you should become incapacitated. Its primary advantage is that all your assets belong to the trust, not to you. So in the event of incapacitation, the named successor trustee can step in and take care of matters. Further, because it is revocable, you can easily amend or end it at any time if you wish.
2. Living Will – A living should always be a part of sound estate planning. It clearly spells out your wishes for end-of-life care if you become incapacitated
3. HIPPA Authorization – Those you’ve appointed make medical decisions for you must be able to access your medical records and information. To ensure they can, you should sign a HIPPA release/authorization to facilitate their accessing necessary information.
4. Financial POA – Even if your trust appears to comprehensive and watertight, it still may not cover some financial matters. In this case, you need a financial power of attorney (POA). This POA designates a specific person to pay your bills and handle all your other finances, even those that fall outside the purview of your trust.
5. Medical POA – A medical power of attorney legally authorizes a specified person, your agent, to make medical and health care decisions for you in the event of incapacitation. It is more focused than the comparable part of your living will and so should be included in your estate planning.

At Legacy Law Group of Northern Virginia, we specialize in estate planning matters. Our experienced attorneys can help you with that act of love called an incapacity plan. You may never need it, but that’s just too big a chance to take. Contact us for more information by calling (703) 492-9955 or using our online contact form.