Incapacity planning encompasses pre-planning to get your wishes in writing and authorizing trusted helpers to act on your behalf when you cannot. This keeps you in control and avoids court interference. The guardianship (or conservatorship) court process was established to help people who don’t do their own incapacity planning and have no one authorized to help them.
This is a good thing, but if you have the choice, and you do, it should be avoided. Court interference is a total loss of control; plus, it’s expensive, time-consuming, and can be heartbreaking. Basically, it’s a court case wherein family members, doctors, social workers, and the like have to testify that you are incompetent in a public courtroom.
For financial incapacity planning, all adults need a financial power of attorney and should consider a revocable living trust (it’s a good fit for most people.)
For medical incapacity planning, all adults need a health care power of attorney and HIPAA release and should consider a living will and organ donation authorization.
- Financial power of attorney: a legal document in which an individual authorizes an agent to act on hisor her behalf in financial and personal business matters. Most powers of attorney are effective immediately, but aren’t used until incapacity occurs. Authorization under a power of attorney ends at death.
- Revocable living trust: a legal document in which an individual authorizes a trustee to act on his or her behalf if he becomes incapacitated. The disability trustee has authority to act so long as the trust maker is incapacitated; if capacity is regained or the trust maker dies, then the disability trustee’s authority ends.
- Health care power of attorney: a legal document that authorizes agents to make medical decisions for the benefit of another if that person cannot provide informed consent.
- HIPAA release: a legal document that is required for medical privacy laws; it allows medical personnel and health care agents to communicate to named persons (family members, etc.).
- Living will: a legal document containing an advance medical directive stating that if the principal is in a persistent vegetative state or irreversible coma, no medical heroics, such as life support, will be provided.
- Organ donation authorization: a legal document containing an advance medical directive, stating that the principal wishes to donate his organs and tissues upon death.
If you don’t have incapacity planning in place, consult with a qualified estate planning attorney.