Life can turn on a dime without any warning, and things can rapidly change without you even realizing it is happening. One day you could be just fine and loving life, and the next day you could be lying in a hospital bed clinging to life. Yes, it can happen that fast – even faster in some situations! What do you do, though? While you can’t prevent things from happening because it is, after all, unexpected – you can put some plans into place.
Incapacity planning, believe it or not, is an integral part of the estate planning process. Yes, you are going to work on creating a will and you are going to work on creating a trust (or several trusts, depending on your situation). Wills and trusts are just part of the entire picture which is called your estate plan, though. You have to think about everything, including what might happen or what you don’t expect to happen. That’s where the incapacity planning process starts.
Do you want other people making your decisions for you? Of course you don’t, which is why you want to create a durable power of attorney or a medical power of attorney. Speak with your estate planning attorney to determine which one is the best fit for your estate plan, or if both of them might be necessary. With these tools in place, you are certain your wishes are met medically and personally. Without these tools in place, your wishes are likely not going to be 100% met. That isn’t a comfortable situation for anyone, particularly family members who have to stand by and watch – or go to court in attempts to gain guardianship over you while you are incapacitated.
What’s next? In addition to these documents, you must ensure funds are available should long term care or nursing home expenses become part of the equation. You already know medical expenses are on the horizon, and that too should be part of your incapacity planning. Your estate planning attorney may advise that you create a trust to place these funds into, in addition to seeing if you qualify for Medicaid or Medicare benefits. Because you are trying to plan for every eventuality, you must not overlook the financial aspect of the entire situation.
Work with your estate planning lawyer consistently in order to keep your documents current and up to date as life situations change. You may wish to make changes or additions to your incapacity plan which will, in turn, change your estate plan.
Stephen A. Mendel, Estate Planning Attorney
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