Most people don’t want to think about the possibility of being incapacitated, especially if they’re in the prime of life. However, the likelihood of becoming incapacitated by an illness or a serious injury is something that everyone should think about and prepare for, especially if you want to protect your assets. While it is natural to focus on planning for the distribution of assets after one’s passing, it is equally important to address the possibility of incapacity during one’s lifetime. Incapacity can strike unexpectedly, and with mental health issues, cancer, and musculoskeletal disorders being the most common reasons for long-term incapacity, it only makes sense to be prepared as early as possible.
At Hays Firm, we understand the significance of preparing for such scenarios. This comprehensive article explores how estate planning, with the help of a skilled probate attorney, can help you plan for incapacity, ensuring your wishes are respected and proper management of your financial affairs if you are unable to do so yourself.
A crucial component of estate planning for incapacity involves designating a trusted individual as your power of attorney. Creating a power of attorney helps prevent potential disputes among family members and ensures the smooth handling of your financial matters, even when you cannot do so. This legal arrangement grants this individual the authority to make financial and legal decisions on your behalf if you become incapacitated. As such, this person will be able to create legal documents and buy or sell property on your behalf, among other things.
Make sure to carefully select someone you trust since your physical and financial well-being will be in their hands. Choose someone who understands your values and preferences so your financial affairs can be managed according to your wishes. Additionally, you need to make sure that your power of attorney meets the legal requirements since not everyone is qualified to become one. For instance, you cannot appoint your middle schooler because a power of attorney needs to be at least 18 years old.
Planning for incapacity should also encompass your medical preferences. Healthcare directives and living wills are legal documents that allow you to outline your medical treatment preferences in advance. These documents provide clarity and guidance to your loved ones and medical professionals, ensuring that your health-related choices are respected and alleviating the burden of decision-making during an already challenging time.
Should you become incapacitated, your designated healthcare proxy can make medical decisions, adhering to your documented wishes. Some of these decisions include whether you want to be on life support or not, and instructions on using devices like feeding tubes or breathing machines for your treatment. You may also include wishes for organ donation in your living will.
A revocable living trust is a versatile estate planning tool that becomes especially valuable in the event of incapacity. A skilled trust attorney can help you create a trust that meets your needs, and help you transfer your assets to the trust. By transferring your assets into the trust, you maintain control over them during your lifetime. Some assets that can go into living trusts include real estate, checking and savings accounts, stock certificates, and physical bonds. If you become incapacitated, your appointed successor trustee can manage the trust’s assets on your behalf. Your chosen successor trustee can ensure the handling of your financial affairs with your wishes and best interests in mind. For instance, to make sure that your family home is bequeathed to your child, you can transfer ownership of it to the living trust. In the event of your passing or if you become incapacitated, the trust will then transfer ownership of your house to your child.
If you have minor children, planning for incapacity involves designating a guardian who will care for them if you cannot. By explicitly stating your choice in your estate planning documents, you can ensure that your children are in the care of someone you trust and who shares your values and parenting philosophies.
You must name a guardian in your estate plan to avoid disputes among family members and uncertainty regarding your children’s future. Most people often choose their parents, siblings, or close relatives to serve as guardians. However, if family members are not an option, you can also appoint your closest friend as your child’s guardian.
Anyone 18 years and older can be a guardian, but they have to be willing to undergo a background check to make sure that they’re qualified to care for and provide for a child. By taking this proactive step, you prioritize your children’s well-being and offer them stability in times of uncertainty.
Incapacity can leave you vulnerable to financial exploitation and personal harm. Estate planning addresses this concern by allowing you to set up safeguards that protect your interests. By designating specific individuals to oversee your financial matters, ensuring accountability in financial transactions, and defining asset management, you can minimize the risk of financial abuse during periods of incapacity.
Furthermore, estate planning enables you to make provisions for continuing your business, if applicable, to safeguard its operations and prevent disruption. For instance, an estate planning attorney may advise you to place your company in a trust so you can choose the best person you think will be the most qualified to run your company should you become incapacitated.
At Hays Firm, we recognize the importance of planning for all stages of life, including the possibility of incapacity. By partnering with our experienced team, you can create an estate plan that safeguards your well-being, financial affairs, and personal wishes if you cannot decide for yourself. From establishing powers of attorney to crafting healthcare directives and trusts, our comprehensive approach ensures that your interests are protected, and your loved ones are relieved from the burden of uncertainty.
Contact us today to schedule a consultation and take the first step toward securing your future and the future of your loved ones.
