If you or someone in your family has a chronic or terminal disease such as cancer, diabetes, ALS, multiple sclerosis, or dementia, the reality of needing to prepare your Estate Plan is more than a “someday” or a “what-if” scenario. Chronic or terminal diseases make it more urgent that you address Estate Planning issues and plan for the care of your choice before those decisions are out of your hands.
Each of these 3 generations of men need Incapacity Planning. Just in case.
But the truth is, none of us know what illness or an accident will strike so we all need to be prepared.
It’s far nicer to be able to make your own choices about what will happen to you should you become incapacitated. You may recognize that much of this is simply good, standard estate planning.
If an immediate illness is upon you, please consider taking these steps ASAP. Take control of your estate planning, health care, and financial affairs right now!
- Find financial and estate advisors you are comfortable discussing your situation with and have them help you customize your plans to fit your needs.
- Finalize your Advance Health Care Directive.
- Customize your Will, Trust, and other estate plan documents.
- Sign important forms right now, while you still can.
- Possibly consolidate bank accounts to make it easier to keep track of your finances.
- Make use of the temporary or limited powers options in your healthcare and financial documents, giving your chosen agents limited power during your temporary incapacity, enabling him/her to file your taxes, if needed, and to pay your bills, but not to sell your or give away your assets.
Steps to take to prepare for Incapacity
Here are some things that you can do to plan for this situation. Remember, you need to do all this before you become incapacitated.
Be ready to be under Conservatorship
One possibility is that you’ll become a Protected Person, falling under the control of a Conservator. We want you to define how this will go! We’ve got an entire page that explains Conservatorships for you.
Create an Advance Health Care Directive
Prepare and sign an Advance Health Care Directive. Everyone really ought to have this document anyway.
An Advance Health Care Directive is a special Power of Attorney specifically for health care purposes that defines your specific health care instructions, organ donation wishes, your physician, your burial.
This document can get you through periods of hospitalization and return your freedom and powers to you when you’re able to resume.
Please read about this on our Advance Health Care Directive page.
Review your Trust if you have one, create one if you don’t
We have an entire page dedicated to Trusts and their benefits, as well as a page about Trust Administration, so we won’t bore you with repetition here. But let’s look at the issues surrounding incapacity.
If you have a Trust, make sure it very clearly defines Incapacity. It is when you are incapacitated that you can no longer act as your own Trustee and your Successor Trustee will takes over. This is when the agent nominated in your Advance Healthcare Directive is handed the authority to make health care decisions for you.
Prepare a Financial Power of Attorney
If you ever become incapacitated you will still have bills to be paid, investments to be monitored, and financial decisions to be made.
By creating a Financial Power of Attorney document, you set up a trusted person to have the power to keep all those various financial balls up in the air. The person you appoint, your chosen agent, will have the power to access your bank and all other financial accounts, so be sure to choose someone you trust.
A Financial Power Of Attorney gives your trusted person permission to make choices on your behalf. But, it also provides this person with your instructions as to how those choices should be made.
Here are some of the most important things you should know about Financial Power of Attorney:
- It is only effective during your lifetime; it gives your agent/attorney-in-fact the power to act for you while you are alive but unable to act for yourself.
- It can be created to go into effect immediately if you’d rather have someone take over for you now, or it can become effective only in the event that you become incapacitated. The latter is called a Springing Power of Attorney because it “springs” into effect once you are incapacitated.
- It can be revoked at any time, as long as you have mental capacity.
- It is for financial and legal issues only. (There are other power of attorney focuses such as medical, which are named in separate documents.
Because your Financial Power of Attorney grants your agent such broad powers, it is of the utmost importance to choose an agent who will not only be able to make wise decisions for you but who will also have your best interests at heart.
We will also work with you to build a system of checks and balances into the document to help protect you and your estate. For example, we are very careful to word the power in ways that set limits on your agent’s power. We’ll also require your agent to keep detailed records and present these records to you or other named individuals
Prepare for your minor children
If you’ve got children who are minors, you need to make sure their care and needs are covered while you’re unable to focus on them or while your word or decisions won’t be recognized due to your own illness. We have a page dedicated to Planning for Children.
In addition, Forbes’ Martin Shenkman, in his article called More Planning Prescriptions, recommends an emergency child medical form in which you authorize a trusted person to seek medical treatment for your child in an emergency. He mentions this is not legally binding but tends to be accepted.