Like most people, you probably focus on what will happen after your death when you think about estate planning. While your estate plan certainly can, and should, dictate what happens to your body and your assets after you are gone, it should also plan for the very real possibility of your incapacity. Not only do you want to protect your assets if you become incapacitated, but planning for incapacity ensures that you maintain autonomy regarding healthcare decisions as well. To get you started, the Essex Junction attorneys at Unsworth LaPlante, PLLC discuss how to ensure that your wishes are honored in the event of incapacity.
Incapacity Is Not Just an Old Age Problem
Yes, the odds of becoming incapacitated do increase with age; however, you could become temporarily or permanently incapacitated at any age. During your working years, an accident or illness could cause you to suffer a period of incapacity or that same accident/illness might leave you permanently incapacitated. The longer you live, the better the chances are that you will develop Alzheimerâs or another age-related form of dementia that causes incapacity. Because there is no way to know if, or when, incapacity will strike, your comprehensive estate plan should plan for the possibility.
Incapacity and Your Assets
Imagine, for a moment, that a tragic accident left you in a coma. You cannot communicate with anyone, and no one can communicate with you. If your medical condition does not improve, someone will eventually need to step in and take over control of your finances and assets. Bills would need to be paid. Assets might need to be sold to cover medical bills. Someone might need to act on your behalf with a mortgage company, landlord, or creditors. In short, someone would need legal authority to manage your assets and act on your behalf. If you are married, your spouse may have that legal authority; however, there are limits to what even your spouse can do without your express legal authority. If you are not married, there is no one with the needed authority, meaning a judge might have to decide who should have the authority. To prevent letting a judge decide, incorporate an incapacity planning component into your estate plan. Within that component, you might create a revocable living trust that can automatically shift control of trust assets to a successor Trustee (of your choosing) if you become incapacitated. You can even define the conditions that activate the shift in control. A durable Power of Attorney is another common incapacity planning tool that lets you appoint an Agent to act on your behalf in legal matters. By making the POA durable, your Agentâs authority survives your incapacity.
Honoring Your Wishes in the Event of Incapacity
The other important reason to have an incapacity plan in place is to ensure that you do not lose your autonomy, particularly when it comes to making medical treatment decisions. If you are unable to make decisions about medical care and treatment because you are incapacitated, someone must make those decisions in your stead. To ensure that your wishes are honored, you need an advance directive in place. A Living Will allows you to express your wishes about things such as life-sustaining or life-prolonging medical care â and doctors are legally obligated to abide by your wishes if they are incorporated into a Living Will. A different type of advance directive lets you appoint an Agent to make healthcare decisions for you if you cannot make them. Without an advance directive, a judge might be forced to appoint a decision-maker and it might not be someone you want making such important decisions.
In the Event of Incapacity, Will Your Wishes Be Honored?
For more information, please attend one of our upcoming FREE webinars. If you have questions or concerns about how to plan for incapacity and ensure that your wishes are honored, contact an experienced Essex Junction incapacity planning attorney at Unsworth LaPlante, PLLC by calling 802-879-7133 to schedule your appointment today.
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