This is an article from the Kulas Law Group (https://www.kulaslaw.com/) in Port St. Lucie, Florida, that we thought others may find helpful.
Most of us accept that things like death and taxes are an inescapable part of life. We also tend to think that we have at least some level of control over virtually everything else. Sadly, however, that is not the case. Accidents, injuries, and illnesses are not always things that we can prevent or control. As a result, there is always a chance that an unexpected injury or illness could leave you in a state of incapacitation – unable to make critical decisions about your own healthcare needs, personal affairs, and finance management. Fortunately, there are plans that you can put into place to provide for that eventuality while you still have control over your faculties. An effective strategy, however, requires you to understand the essential steps needed for effective incapacity planning.
Why You Need a Plan
There are any number of illnesses or accidents that could leave you without the mental ability to handle your own affairs. Alzheimer’s disease and other conditions involving various forms of dementia could impair your cognitive function and make it difficult to manage even the simplest of daily routines. An accident could leave you incapacitated enough to call into question your ability to make decisions, or you could even end up comatose. Without a plan in place, there is a good chance that a court will end up deciding who manages your interests – leaving you with no say in the matter.
Consider Your Options
To avoid that, you need to consider all of the things you want to prepare for, and act accordingly. Give some thought to how you want your financial affairs managed. Decide whether or not you want life-supporting medical intervention if that proves necessary. Think about the types of medical care you do want. Finally, ask yourself who you would most trust to carry out your wishes in the event that you lose that ability either temporarily or permanently.
With those decisions in hand, contact an attorney to draw up the necessary documents you’ll need for your incapacitation plan. This planning is important enough that you want to make certain that everything is done properly. To provide for a smooth transfer of decision-making power, you will need three main documents: A Financial Power of Attorney, Power of Attorney covering health care concerns, and a Living Trust.
Powers of Attorney
The Durable Power of Attorney is almost always needed, though you will want to consult with your attorney to make sure that you choose the best triggering options for your need. Typically, there are two main forms that get used: The Standard Power of Attorney that goes into effect immediately and remains in effect even after you become incapacitated, and the Springing Power of Attorney that remains inactive only when you are determined to be incapacitated.
Many experts recommend that you choose the Springing option, to avoid giving anyone else power over your financial affairs while you still have your mental capacity. While a Durable Power of Attorney is revocable in any form, that option is only available while you are able to manage your own affairs. While it remains in effect, your chosen agent has full power to manage your financial affairs, and can buy or sell property, make payments from your accounts, invest funds, and so on.
The Power of Attorney for Health Care (sometimes called an Advance Health Care Directive or Living Will) is a powerful tool to ensure that your trusted agent is able to make critical medical decisions about your health care when you lose the capacity to manage those decisions on your own. Like the Durable Power of Attorney used for financial matters, this directive can provide the agent with as much or as little authority as you desire him or her to have.
As part of this process, you can also include express instructions about critical issues like resuscitation, the use of artificial life support, and other important matters related to your care. If you choose to execute a POLST (Physician Orders for Life Sustaining Treatment), you can also ensure that your end-of-life decisions are taken care of in a way that physicians and nurses must honor. That can be especially useful if you are suffering from any type of terminal illness or other serious medical condition.
The Living Trust
You should also consider a Revocable Living Trust to ensure that your entire state can be properly managed if incapacitation occurs. With a Revocable trust, you can name yourself as the trustee so that you continue to exercise control over everything while you remain able to do so. You then list an alternative trustee who will be charged with acting in your capacity if the need arises. There are many advantages to establishing this sort of trust.
The use of an established trust not only protects the decision-making process, but also provides for the distribution of your assets in the event of your death. That can enable your estate to avoid probate, since the assets are owned by the trust and the trust itself handles transfers of assets after you die. This can be a much quicker and less costly way to manage your estate disposition.
If you fail to properly plan for incapacitation, it is likely that a court will end up appointing a conservator to manage your affairs. That person will be under the supervision of the court, and will need approval to execute most major transactions – which can be problematic if you have business interests or investments that need more rapid response. In addition, this can be a costly affair, and sap your resources at a time when you can least afford such expenses.
For those reasons and more, it is always advisable to ensure that you have properly planned for possible incapacitation. Because this is a complex process, it is important that you have the legal assistance you need to deal with these important matters.