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Planning for Incapacity

While an estate plan has obvious uses - i.e., planning for the disposition of estate assets after the death of a testator - some of the lesser-known benefits of a well-written plan are the provisions that provide for both management of assets and instructions for personal care in the event of incapacity.

Incapacity, simply put, is an inability to make decisions for oneself in a legal capacity. It can be temporary or permanent, and it may be the result of an injury, a health crisis such as a stroke or heart attack, declining mental faculties, etc. Estate planning documents that anticipate incapacity can allow named representatives to manage one's assets, as well as direct how health care decisions will be made in absence of the capacity to make them oneself. Without these documents and directives in place, family members may have to petition a court to give them the power to manage the assets or make health care decisions for one who is incapacitated.

The first document necessary to plan for incapacity is the durable power of attorney. This document survives incapacity and gives a designee the authority to act on one's behalf with regard to financial affairs. The durable power of attorney is valid the moment the testator signs it, so selection of a trusted designee is crucial. A revocable living trust may be an even better form of protection against incapacity, as assets are transferred to the trust and a successor trustee merely takes over as trustee at the settlor's incapacity. The settlor can resume the duties of trustee once the incapacity passes. A revocable trust can include more detailed directions that aren't typically found in a durable power of attorney, making it an ideal method of planning for asset management during incapacity.

The next set of documents covers health care decision-making, which can be accomplished in a few different ways. A durable power of attorney for health care or health care proxy will give a designee the power to make health care decisions on one's behalf, up to and including decisions to keep one in a vegetative state or allow him or her to die. A living will or advance directives can actually document some of these decisions in advance as well, providing clear guidance to caregivers and sparing loved ones difficult decisions with regard to care or end-of-life matters. These documents should also include a HIPAA authorization to allow doctors to disclose important health information to caregivers.

Planning for incapacity is important for all, but it should be noted that this form of planning is especially crucial for unmarried partners, as courts will generally appoint only family members to manage assets or make health care decisions in absence of instruments that designate representatives. These instruments can name anyone, including partners, so these documents are especially crucial to keeping decision-making in the hands of the individual rather than the courts. The attorneys at McBrayer can review your estate plan to make sure your decisions are clear and effective in the event of incapacity.

This article is intended as a summary of federal and state law and does not constitute legal advice.

Lexington, KYLouisville, KYFrankfort, KY: MML&K Government SolutionsWashington, D.C.