Planning for Incapacity: What Documents Do I Need?
planning for incapacity - will, power of attorney documents
Planning for Incapacity |

Creating a valid will or trust plan gives comfort and clarity to your loved ones when you pass away. Equally important, though, is having an incapacity plan.

In the event that you become unable to make decisions for yourself due to an accident or health complications, an incapacity plan lets you appoint a capable adult to make medical and/or financial decisions on your behalf. While you hope that you or your loved ones will never have to experience this, it could happen to anyone at any time.

Having an incapacity plan in place can save you and your family money, time, and needless anguish during a difficult time. Here is what you need to know about planning for your potential physical or mental incapacity in the future.

What is an incapacity plan?

Be it from a traumatic accident, serious illness, or worsening mental condition, one can become incapacitated quickly and suddenly. Planning ahead allows your wishes to be protected by giving someone having the legal authority to represent you, your well-being, and your interests.

An incapacity plan covers three aspects of your life: financial, personal, and health. With these arrangements pre-made, it allows your family, doctors, and legal team to carry on smoothly and protect you.

Documents in an incapacity plan

An incapacity plan isn’t a singular document; rather it’s a series of advance directives to be followed if you are physically and/or mentally incapacitated. Below are some or all of the legal documents you may include in your incapacity plan:

Living will

A living will (sometimes known also as an advanced medical directive or health care proxy) outlines your wishes should you become diagnosed with a terminal illness or condition where end of life planning is required to be made on your behalf if you are incapacitated. This document is entirely separate from a Last Will and Testament and has absolutely nothing to do with your property or who inherits from you when you die.  At the Law Office of Patricia E. Tichenor, P.L.L.C., we include living will provisions in our durable medical power of attorney.

Do-not-resuscitate order (DNR)

A DNR states under what conditions you refuse to accept medical treatments after you stop breathing or your heart stops. It can also be a part of the living will provisions set forth in a durable medical power of attorney.

Durable Medical or Health care power of attorney

This is a document that gives someone the legal right to make health care choices for you should you not be able to communicate your wishes. Combined with a living will, a health care power of attorney ensures your medical choices set forth in that document and conferred upon your attorney-in-fact (also commonly referred to as “your agent”) under your power of attorney are honored.

Durable General power of attorney for finances

You can legally grant someone permission to manage your financial affairs through a durable  general power of attorney for finances. This allows a designated and trusted person selected by you to manage all aspects of your financial affairs during a period of incapacity, from paying bills, paying taxes, managing investments or bank accounts, and much more.

Revocable living trust

A revocable living trust allows you to transfer title during your lifetime of your assets to a legal entity considered separate from you so that your assets can be managed for your benefit as well as your family during your lifetime and after your death.  It can be a very effective tool to avoid probate, obtain creditor protections for assets held by the trust, and stagger inheritance distributions to your children (or grandchildren) until they reach ages at which you feel they may be readily able to handle what you leave them.  While typically you are the trustee of your living trust, you can choose a successor to take over the trust responsibilities should you become incapacitated.

What happens if I don’t have an incapacity plan? 

Failing to have an incapacity plan or any estate plan in place may cause great financial and emotional stress for your family. Without an appointed attorney-in-fact or agent, a court will have to decide based on whomever files a petition if they qualify to serve as a guardian of your person and a conservator of your assets.  The person filing to serve and the person appointed to serve in these roles may not be a person you would want to be handling these decisions for you.  Thus, it is critical to ensure you have a plan in place that meets your specific wishes and needs.

Second, if you have minor child(ren), you should seriously consider designating a “living guardian” for their protection, called a designation of standby guardian in Virginia.  Without one, you will have little to no control over where they end up if you are unable to care for them. If you become incapacitated without appointing a legal guardian for your minor child(ren), the court may decide who will house and care for them. This may be especially concerning if you are unmarried/divorced or if your child(ren)’s other parent is otherwise no longer in the picture.

Contact an experienced estate planning attorney for help with your incapacity plan

If you become unable to care for yourself or communicate your wishes, an incapacity plan can help your loved ones make difficult decisions about your health care and financial assets.  The Law Office of Patricia E. Tichenor can help you create a proper plan that protects your interests. Contact us today to discuss your estate planning needs.