What if you don’t die?

Why Ignoring the Importance of Incapacity Planning Can Have Serious Consequences


When most people think about estate planning, they think of it as death planning.  A good many people unfortunately feel that engaging in this “death planning” will somehow make it happen.  Just like talking about sex does not make you pregnant, putting in place an estate plan does not bring about your death.  The common misconception that all your efforts to create a comprehensive estate plan are focused on what happens after your death is a dangerous misconception by which to plan.


Yes, estate planning does provide a roadmap for what is to happen at your death; however, it is about so much more. When you engage in comprehensive estate planning, you are not only planning for what happens at your death, but just as importantly you are planning for what happens if you do not die.  Seventy percent of people are likely to have some period of incapacity during their lifetime.  This could be only physical but it could also be cognitive.  That is why it’s also crucial that your planincludes up-to-dateprovisions for what will take place ifyou don’t die.  Your estate plan, or lack of one, can drastically impact you and your loved ones’ quality of life well before you pass away.


The relationship between incapacityand your estate plan


Many people become legally incapacitated, where they lose the ability to make their own legal decisions on either a temporary or permanent basis. This legal incapacity is not the same as being disabled for social security or workers compensation purposes. Rather, it is the result of coma, cognitive impairment caused by degenerative illnesses, or other situations in which a person is no longer able to make their wishes known due to loss of physical or mental function.


What if you don’t die and are instead in need of help because you can’t manage your finances any longer? A robust, trust-based estate plan will include the necessary documents to make sure your wishes are carried out to a T — even if you aren’t able to express those wishes at the time.


Youwanta plan that will protect your privacy, free you from court interference, help you protect and manage your assets, and enable you to name the people you trust the most to act on your behalf.  Without a comprehensive incapacity plan in place, you will be at the mercy of a judge who will appoint someone to take control of your assets and make all personal and medical decisions for you through a court-supervised guardianship.  The person appointed may not be the person you would have chosen.  You and your loved ones could lose valuable time, money, and control until you either regain capacity or die. 


The components of your plan that impact incapacity


  • A revocable living trust: In the typical situation, you will be the trustmaker, the trustee, and the beneficiary of your revocable living trust. But if you ever become incapacitated, your designated successor trustee will step in to manage the trust assets for your benefit.


  • Powers of Attorney (financial and medical): The financial Power of Attorney, gives your agent the authority to pay bills, make financial decisions, manage investments, file tax returns, mortgage and sell real estate, and address other financial matters that are described in the document. The financial Power of Attorney come in two forms: “durable” and “springing.” A durable power of attorney goes into effect as soon as it is signed, while a springing power of attorney only goes into effect after you have been determined to be mentally incapacitated.


The medical power of attorney allows the person you designate to make your healthcare decisions for you when you are no longer able to communicate them to your physicians.  In Texas, the attending physician must certify in writing that you are not capable of making healthcare decisions before your agent will be allowed to make decisions for you. 


  • Directive to Physicians and Surrogates:This legal document memorializes your medical decisions about end of life care. In Texas, you can decide what measures are to be taken if your doctors determine that you either have a terminal or incurable condition.  This decision is one you should discuss with your doctor to gain insight on possible medical situations which could arise and how you want to deal with them.  In an effort to reduce family discord, you should also discuss your decisions with your family members so they understand what choices you have made. 


  • HIPAA Authorization:Federal and state laws dictate who can receive medical information without the written consent of the patient. This legal document gives your doctor or other health care provider the authority to disclose your healthinformation to the person(s)selected by you.


  • Pre-Need Declaration of Guardians: You can name guardians for yourself as well as for minor children. You may also want to create a legalpet trust if you have strong feelings about who you’d like to care for your animals should you become incapacitated.


Don’t let a lack of incapacity planning damage your quality of life and cause undue stress for your loved ones. Let’s schedule a time to make sure your estate plan has solid, up-to-date provisions in place that make your wishes regarding incapacity plainand clear.


If you would like further information or assistance, please contact Hurst-Euless-Bedford, Texas Estate Planning and Elder Law Attorney, Antoinette Bone, at (817) 462-5454 , email info@abonelaw.com, or click here to go ahead and set an appointment : 

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