Becoming incapacitated mentally and/or physically is not always something you can see coming—but you can plan for it. Preparing a living will and power of attorney while you’re healthy is the best way to ease the burden on your loved ones—making sure they know your wishes when you’re unable to care for yourself.
When we talk about estate planning, most of us associate that idea with, “what happens to our earthly assets and liabilities when we die.” That’s a big part of it. But there’s something else I want you to consider—an incapacity plan including a living will.
Imagine you’re driving home from a lovely dinner with friends. You’re singing along to your favorite song on the radio. You laugh as you remember that hilarious story your bestie told you about her new puppy.
BAM! Out of nowhere, a drunk driver slams into your car at full speed.
Suddenly, your world has changed.
After an ambulance ride, surgery, and now life support, you are in a coma. You can’t make decisions about your care. And you can’t pay your bills, care for your home, and manage your other assets.
Since you’re still relatively young and healthy, you didn’t see a need for this kind of planning yet and put it off. Now, your family or trusted friends aren’t allowed to make decisions for you. Now, decisions about your medical care and finances are up to the courts.
Court Appointed Guardian or Conservator
That’s right! Without having the proper documents in place—like a living will and a power of attorney—the court will appoint someone to make medical and financial decisions for you.
Granted, tragic accidents are not something everyone goes through. But the older you get, the more likely it is that you’ll be dealing with reduced mental capacity.
As you age, you begin to rely on the people around you more and more for help with daily life. You may struggle to make decisions and keep up with your finances.
Managing your healthcare can be terribly difficult. With a bunch of different doctors and medications, keeping it all straight would be hard for anyone. But the older you get, the harder it becomes.
We typically think of cases like Dementia or Alzheimer’s Disease as reasons why you would need to designate someone to help with medical and financial decisions. But there are actually quite a few situations where you might need to rely on an incapacity plan.
Physical injury, like in our story above, is one case. But there are also situations—like chronic health conditions, emotional issues, or even addiction—where you may need help with day-to-day living.
What Happens if You Don’t Have an Incapacity Plan?
Planning for incapacity is just as important—some would say more important—than planning the transfer of assets after your death.
Each state has statutes in place that will allow a judge to appoint a guardian and/or conservator for you if you become incapacitated. A guardian is someone who will make personal decisions on your behalf, and a conservator is someone who will make your financial decisions.
One very famous case in the news recently was the conservatorship case of Brittney Spears. After going through a major personal crisis, Brittney had a very public mental breakdown. Because of concerns about her mental welfare, a judge appointed her father as her conservator.
Whether or not her father did right by Brittney with the conservatorship, one thing is very clear. She was not happy with the way he managed her affairs, and it was extremely difficult for her to get it changed.
Let’s say you find yourself in a situation where you need a guardian or conservator and you get lucky. The judge has appointed the exact same person you would have chosen.
As long as the guardianship is in place, decisions are subject to oversight by the court. Your guardian must provide a regular status report for judicial review. This process can be emotionally and financially draining for your loved one, not to mention a greater loss of privacy and independence for you.
So how do you maintain control even when you need help? How do you protect yourself in the event of an accident, or as you age and become increasingly vulnerable?
A Durable Power of Attorney and Living Will Are Essential
Being proactive and planning for the worst before something happens is extremely important. Having an incapacity plan will ensure that your family understands your wishes—both medically and financially—reducing their burden when the time comes.
Most commonly, we’ll need to have the following documents in your plan.
A durable power of attorney will allow the person you choose to make important financial decisions for you. The same person can be in charge of both personal and business decisions, or you can appoint a different person for each if that makes more sense.
A healthcare durable power of attorney is a document that appoints a specific person to make medical decisions on your behalf.
You will also want to have a HIPPA release on file. HIPPA is the regulation that protects your privacy regarding your medical records. In order to share this information with the person making decisions, you need to give them access to that information.
Another vital document to have in your plan is an advance directive or a living will for end-of-life healthcare decisions. This will spell out the life-saving measure that can be taken.
You may need additional documents to cover your specific circumstances. Your estate planning attorney will be able to recommend the documents needed in your situation.
Share Your Plan
One of the last and often overlooked parts of putting your incapacity plan in place is sharing it with your loved ones, and making sure it is always up to date.
Don’t put it in the back of the file cabinet and forget about it. Review your directives with your estate planning attorney and your loved ones on a regular basis. Make sure they know where you keep the documents in case they need to find them urgently.
Contact Schroeder Larsen Law
Do you have an incapacity plan in place? When was the last time you reviewed it to make sure it still accurately reflected your wishes?
Please don’t leave your health and your financial affairs up to strangers. If you don’t have an incapacity plan in place, let’s get one started for you right away.
Schedule a time with me to discuss your situation and create a personalized plan that will cover your needs.
Kirsten Schroeder Larsen is an estate planning attorney licensed in Kansas and Missouri. She is passionate about helping people work through the difficult and often emotional process of end-of-life planning.
If you have questions or don’t even know where to start, Kirsten can help. Her thoughtful and compassionate demeanor will put you at ease. She’ll guide you through the process of ensuring your family is taken care of when you leave this world.
This information is not, nor is it intended to be legal advice. You should consult an attorney for individual advice regarding your own situation. The material on this website does not create an attorney-client relationship between you and Schroeder Larsen Law, PA.