How Do I Plan For Possible Incapacity?

Most people avoid considering the possibility that they or a loved one might someday find themselves unable to make or communicate decisions or manage their own care or financial affairs. Unfortunately, estate planning and elder law attorneys see it happen all the time. Even those who are young and in good health can be struck by a sudden illness or rendered incapacitated in an accident. 

Of course, not every occasion for incapacity is long-term because not every significant illness or injury results in prolonged disability.  Still, as we get older, the odds increase that some physical or mental condition could cause us to become incapacitated, whether temporarily or not.   Taking steps to be prepared shows that you are ahead of the game and thinking more clearly than most people. 

Your estate planning attorney can help you devise legally valid directives to ensure that your wishes in the event of incapacity are voiced and implemented.  These documents allow you to designate your chosen representatives in advance and to empower them to act on your behalf when necessary, without involvement by a court.  Sadly, the absence of such directives means that if you become incapacitated, a friend or relative or even a hospital, may need to initiate a formal legal case by petitioning the court to establish legal guardianship or conservatorship – a much more crisis-driven and invasive process in which you may, because of your incapacity, have little or no say. 

Designate a Patient Advocate

Designating a patient advocate allows that person to make decisions and authorize treatment on your behalf in situations where you are unable to make or communicate decisions about the type of medical treatment you want to receive. Your patient advocate then becomes responsible for ensuring that your healthcare preferences are followed, including treatment options and medical procedures. This designation is referred to as a grant of medical (or health care) power of attorney. It is one form of what health care professionals refer to as an “advance directive”. The document granting medical power of attorney to authorize your patient advocate can also specify your preferences for certain types of treatment.  

You can designate any person who is 18 or older and of sound mind as your patient advocate. As you think about who to assign to this role, try to think of someone who: 

• Understands your medical issues 
• Has similar values to your own
• Respects your wants and needs

You want to choose someone you believe will naturally act in your best interests.  You will also want to designate alternative (or successor) patient advocates in the event that your first designee is unavailable at the time.

Create a Durable Power of Attorney for Finances

Just as authorizing a patient advocate enables someone to make medical decisions and provide for your personal care if you become incapacitated, preparing a durable financial power of attorney authorizes someone to handle your financial affairs, whether or not in the event of incapacity. 

This allows you to appoint someone you trust to handle your finances if you become incapacitated. This designated agent can manage your bills, investments, banking transactions, and property decisions. You can set limits on how much authority you want to give that person. For instance, you could authorize your agent to access only two specific accounts to pay bills if necessary but not to control all your finances. You can also choose to have the authority take effect right away – even if you are not incapacitated – or to remain dormant until a specific event occurs. Alternatively, your financial power of attorney might only become effective if a doctor declares you to be legally incapacitated. 

The “durable” part means this authority continues after incapacity. We prepare powers of attorney that are durable to protect our client’s interests. 

Why It’s Important to Consult an Attorney for Assistance with Incapacity Planning

Documents granting powers of attorney are intended to confer broad authority to your designees, and they must be drafted correctly to protect your interests. You could end up giving your agent more authority than you’d intended, which can put you in a difficult situation. On the other end of the spectrum, you might end up not providing enough authority for your agent to act in the way that you want them to.  In some cases, your documents might not be accepted by financial institutions and your agent would not be able to take any steps to assist with your financial affairs. 

Then too, in the case of defective documents, usually no one realizes until it is too late to do anything about it. Once someone has become incapacitated it is too late to create a power of attorney or take other preventative protective measures. 

To Be Fully Prepared for Whatever the Future May Bring …

Planning for possible incapacity is a thoughtful way to protect yourself and your loved ones proactively. An experienced estate planning attorney will recommend the specific measures that make the most sense in your situation to establish plans for potential incapacity, and will ensure that all documents are legally sound and enforceable. At Bassett Murray Law Group, we can ensure that you take the right steps to remain prepared. And, because life and legal requirements can bring unexpected changes, we also recommend reviewing your documents every three years or after a change in your circumstances to ensure that your preparatory measures still provide the protection you need. 

Don’t wait until it’s too late—contact us today at 734-930-9200 in Ann Arbor or 231-427-2292 for our Petoskey office, or contact us online.