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What is Incapacity Planning?

Incapacity Planning

No one wants to entertain the idea or the possibility of becoming incapacitated in the future. While not everyone becomes incapacitated, it is still good to be prepared. This can be done best through incapacity planning. Through this, you will get to name someone you trust to make decisions about your property, housing, medical treatment and other important life matters in the event that you become incapacitated. If Alzheimer’s or dementia runs in your family, that is all the more reason for doing incapacity planning.  You must do this planning with a reliable lawyer so you can avoid common estate planning mistakes.

Understanding Incapacity

Incapacity happens when you can no longer make decisions for yourself, your family or your property. This inability could be mental or physical, and may be permanent or temporary. The most common causes of incapacity are dementia, injury, heart attack, stroke or mental disorder. Making prior arrangements through incapacity planning is the best way to be prepared for this.

Why Planning is Important

A Will or owning property jointly is not enough. These will just cover what happens to your assets after you die and how those assets will be distributed. Wills and jointly held property don’t help you if you get incapacitated.  If you have not properly planned and you become incapacitated, the probate court will appoint someone to handle your medical issues and manage your assets on your behalf. That’s right; you don’t get to decide because you are already incapacitated. Your spouse or a family member will not automatically be the substitute decision-maker. Although the court is likely to appoint a family member or someone close to you, a judge has the power to appoint a total stranger. You would not want that to happen, would you? With incapacity planning, you get to decide these things ahead. You can prepare for physical or mental incapacity. If mental disorders run in your family, it is best for you to do mental health estate planning as well. Of course, all of this is best done with the help of a great lawyer.

Revocable Living Trusts

A revocable living trust can help you with incapacity planning since it covers you when you are incapacitated and also when you have passed away.  A revocable living trust names someone to take over for you if you are incapacitated.  This means that individual will handle paying for the health care you need with assets that are within the control of the revocable living trust. Not only do you need someone who can make all of the medical and mental health decisions, but you need someone to handle the finances to do all of this when you are not able to do these things for yourself.  A durable financial power of attorney also helps by naming someone who will use your assets to pay for your health and mental health care.

Health Care Decisions

You should do incapacity planning for health care decisions. There are three documents that will cover you if you become incapacitated. These medical directives or documents are the following: durable power of attorney for health care, living will, and durable mental health care power of attorney. In a durable health care power of attorney, also known as a health care proxy, you get to appoint someone to make health care decisions for you and on your behalf if you cannot make those decisions yourself due to incapacity.  A durable health care power of attorney includes a waiver of the HIPAA privacy laws that surround your medical records.  A durable health care power of attorney can also include your wishes regarding treatment options and organ donation.  A living will authorizes the person in your durable health care power of attorney to decide if you should be kept alive on life sustaining equipment or allowed to die peacefully and pain free, when you are incapacitated.  It kicks in when you are no longer able to make any decisions for yourself and are most likely in a vegetative state.  A durable mental health care power of attorney says that you can be hospitalized in a psychiatric hospital if you are a danger to yourself or other people.  Generally, the same person makes decisions in all 3 of these documents.


Even if you have already made prior arrangements, you should take out your documents and review them yearly. This is to ensure that your documents are kept up-to-date, especially if there are significant changes in your life, like a marriage, a divorce, a new child, a new grandchild, different decision makers, etc.

An estate planning attorney is crucial in ensuring that your wishes are met if you get incapacitated. You must hire a dependable lawyer who is experienced and knowledgeable in incapacity planning, like Sue SandysContact her today.

This blog is made available by the lawyer or law firm publisher for educational purposes only as well as to give you general information and a general understanding of the law, not to provide specific legal advice. By using this blog site you understand that there is no attorney client relationship between you and the blog publisher. The blog should not be used as a substitute for competent legal advice from a licensed professional attorney in your state.

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