Since emergencies can happen at any time, it’s important to plan for possible incapacity. “Incapacity” doesn’t mean that you’re laid up on the couch with a bad back; it means that you are mentally unable to handle your day to day business or financial affairs. Just in the past few months, two friends became disabled, a 46 year old had a stroke and a 43 year old was diagnosed with ALS, Lou Gehrig’s Disease.  Fortunately, you can use an estate plan to prepare for incapacity.  Take a look at the following information, to learn how you can protect your financial affairs during a time of need.  If you have any questions, or if you’d like to review your estate planning documents to make sure they will work, contact an estate planning attorney.

A financial power of attorney is used to protect you and your finances during incapacity.  A power of attorney allows you to appoint an agent who will have the authority to handle your financial affairs when you cannot.  He or she will have a number of responsibilities including paying bills, making deposits and withdrawals, filing and paying taxes, and purchasing essential items on your behalf.  You’re able to control how much authority is given to your agent.  This is a great way to ensure that your financial affairs will always be in order.

Many people choose to create a revocable living trust.  This tool can also be used to prepare for incapacity, and to ensure that your financial affairs are always in order.  You can determine the definition of your disability (i.e. when you’re disabled) and what happens when you become disabled.  In other words, you leave instructions for your disability agents in your trust.  The trust is an instruction book.

Make sure that you have a plan in place for the future; you need it.  Many people neglect the need to plan for incapacity.  Not having a plan in place may mean that you will have no control over your financial affairs and that the court will intervene.

If you’d like to review your current estate plan, and include incapacity planning, consult with a qualified estate planning attorney.

Legacy APC, A Trusts & Estates Law Firm is a member of the American Academy of Estate Planning Attorneys.

If you’ve attained the age of 18, this estate planning preparation test applies to you.  Why?  Because each and every adult needs an estate plan to protect himself or herself as well as the family.  If you don’t create your own estate plan, the courts and state law will create one for you; and, it likely won’t be what you’ve chosen yourself.

• I have a will, naming guardians and contingent guardians for my minor children.

Yes    No    Don’t Know

• I have stand-by guardianship authorization for my minor children.

Yes    No    Don’t Know

• I have a valid and up-to-date health care power of attorney so my chosen loved ones can make emergency medical care decisions for me if need be.

Yes    No    Don’t Know

• I have a valid HIPAA release so that my medical professionals are authorized to communicate with my health care agents.

Yes    No    Don’t Know

• I have a valid living will so that I am not hooked up to machines if I am in an irreversible coma or persistent vegetative state.

Yes    No    Don’t Know

• I have a valid and up-to-date financial power of attorney so my chosen loved ones can make emergency financial decisions and pay my bills for me if need be.

Yes    No    Don’t Know

• My revocable living trust is fully funded so probate will be avoided.

Yes    No    Don’t Know

• I have the appropriate amount of life insurance so my income will be replaced and last bills will be paid when I die.

Yes    No    Don’t Know

• I have planned to avoid unintentionally disinheriting my children.

Yes    No    Don’t Know

• I have protected my spouse’s and children’s inheritances from predators and creditors.

Yes    No    Don’t Know

• My family knows my wishes for my funeral and burial.

Yes    No    Don’t Know

Unless you can answer “yes” unequivocally to each and every statement, you likely need to have your estate plan updated.  Consult with a qualified estate planning attorney for a review and update.

Legacy APC, A Trusts & Estates Law Firm is a member of the American Academy of Estate Planning Attorneys.

If you have an elderly loved one, ensure that he is able to live comfortably and that all estate planning affairs are handled.  In other words, take the time to review your loved one’s needs to ensure that everything is being handled appropriately.  If you need help, meet with an elder law – estate planning attorney.

• Make sure that your loved one has a full estate plan in place. If your loved one has never planned, now is the time to do so.  If there is planning in place, but it’s more than 3 years old, encourage your loved one to update.

An emergency may occur when your loved one is least expecting it and you want to make sure that he is fully protected.  If your loved one loses capacity to execute estate planning documents, you will have to go to court for a conservatorship proceeding.

Talk with your loved one about his estate planning to ensure that all matters have been handled.  This can also serve to bring a greater sense of peace to your loved one as well as to you and your family members.

• Make sure that your loved one’s healthcare needs are met. Is your loved one receiving proper medical attention?  Does he or she need more medical help as life unfolds?  Discuss your loved one’s health along with your loved one and his doctor to better understand current and probable future needs.
• Understand your loved one’s long term care insurance. If your loved one has long term care insurance, it’s important to make sure that you understand all of the terms.  Now is the time to carefully review all information.
• Consider funeral planning. Taking the time to plan ahead for funerals or memorial services can eliminate much stress in the future and can ensure that your loved one’s wishes are fully respected.  It’s important to discuss this option with your loved one.

Carefully review your loved one’s needs as well as the current plans in place.  It is in both your best interests and those of your loved one to make sure that your loved one has proper planning so that he continues to be protected.  If you have any questions about your elderly loved one’s estate planning needs, consult with a qualified elder law – estate planning attorney.

Legacy APC, A Trusts & Estates Law Firm is a member of the American Academy of Estate Planning Attorneys.

No, you legally cannot sign your spouse’s name to legal documents. There is no exception just because you’re married. If you would like to have someone be able to help you with legal matters and day to day business, you need to appoint an agent under a power of attorney. Here are the answers to frequently asked questions about powers of attorney. If you have further questions, consult with a qualified estate planning attorney.

Do I just need one power of attorney?

It’s unclear exactly the meaning of this question, though we get it often. So, here are three answers to three interpretations of this question:

• There are several types of powers of attorney: finances, medical decisions, child care, and for a particular purpose. You likely need at least two of these powers of attorney.

• In addition, you need to name successor agents, not just one agent under a power of attorney. The successor agent steps in if your original agent is unwilling or unable to serve.

• You should execute several originals of each power of attorney.

Who should I name as my power of attorney?

Who you should name depends upon the purpose of the power of attorney itself.

• Power of attorney for finances = name someone who:
  • Loves you
  • Is highly ethical,
  • Excellent record keeper and detail oriented, and
  • Good communicator
  • Power of attorney for medical decisions = name someone who:
    • Loves you and
    • Can assertively communicate with medical personnel
    • Power of attorney for child care = name the people you named as permanent guardians in your will.

When is a power of attorney effective?

The time of effectiveness depends on how the power of attorney is drafted.

• Power of attorney for finances is typically effective immediately. If you want it to be effective only upon your disability, you can have a “springing” power of attorney that springs to life only upon your disability.
• Power of attorney for medical decisions is effective when you are unable to make your own medical decisions.
• Power of attorney for child care is effective if you are in some way disabled and unable to care for your children.

If you have questions about powers of attorney, consult with a qualified estate planning attorney.

Legacy APC, A Trusts & Estates Law Firm is a member of the American Academy of Estate Planning Attorneys.

The best time to draw up a Health Care Power of Attorney or proxy is while you are attending to your estate plan. You should include this document in your estate plan so that it is ready when you need it.

Although many elements of your estate plan are put into place for the time that will eventually come when you are gone, a Health Care Power of Attorney is a safety net that can help if you are ever in a situation where you are incapacitated and unable to make your own health care decisions.

With all of the advancements in medical technology, doctors can keep people alive longer, and in some cases you can be kept alive for years, even if you are in an unconscious state. Many people do not want to be kept alive by artificial means if there is no chance of recovering and living a good quality of life, but if you do not have a Living Will or a health care agent that can make decisions for you, this could be exactly what happens.

The person you choose to be your health care agent will only be able to exercise their right to make decisions for you if your doctor determines that you cannot communicate your wishes concerning your own medical care. The person that you appoint as your health care agent should be someone that you trust to make the decisions that you would want; this is usually a close friend or a family member.

Once you know who it is that you want to be your health care agent you will want to talk with them to find out if they are willing to take on this responsibility. It is also important that you inform that person of what you would want concerning medical treatment; this is especially important when it comes to life sustaining treatment. Many people are hesitant to end life support if they are not absolutely sure that is what the person would want.

Legacy APC, A Trusts & Estates Law Firm is a member of the American Academy of Estate Planning Attorneys.

The process of estate planning has traditionally been about gaining personal control over your affairs to make sure that your wishes are carried out after your death. This endeavor is of course still central to estate planning, but there is an added dimension that is sometimes overlooked. One of the most amazing demographic trends of our time involves senior citizens. They are in fact the fastest growing portion of the population, and the group of seniors who are 85 years of age and older is growing fastest of all. This increasing longevity is making incapacity planning a must if you want to make sure that you are prepared for any eventuality.

Decision making power is at the core of incapacity planning. If you were to become unable to make your own decisions due to either physical or mental incapacitation, and you hadn’t planned for it, the court could be petitioned to protect you. If the petition is granted they will name a guardian who will make your personal decisions for you, and this includes medical decisions along with where you will reside. A conservator will also be appointed to handle your financial affairs, and this individual or entity will have the power to invest the assets in your estate.

You can, however, maintain personal control of the matter and take that decision out of the hands of the court with the proper estate planning. You simply execute a health care proxy naming the medical decision maker of your choice. You then add a durable financial power of attorney and with this document you select the individual that you would like to empower to handle your financial affairs in the event of your incapacity. As simply as that you have a solid incapacity plan in place, and if you ever decide to change the attorneys-in-fact you are free to do so as long as your capacity is intact.

Legacy APC, A Trusts & Estates Law Firm is a member of the American Academy of Estate Planning Attorneys.