It doesn’t take much to render someone incapacitated, unable to speak or make decisions for themselves. For some, it’s a heart attack, stroke, or a simple trip/fall accident. For others, it results from a car accident or another unexpected traumatic event.
Whatever the case, being prepared for incapacity means others will be making all of your medical and legal decisions for you – and the more they know about your wishes, the better they can do that.
Create a Medical & Legal Plan Reflecting Your Wishes
The general definition of incapacity is a situation where legal adults cannot make clear decisions for themselves, typically the result of a medical injury. People may also be incapacitated if they are under the influence of drugs or alcohol or in the mid-to-late stages of dementia.
Most of us have strong preferences regarding medical treatments, who will take care of our children, how long we’d want to be on life support, and who gets what after we die. The problem is that most of those wishes are never written down with proper witnesses. This means your closest family members or spouse have to make decisions for you, and these decisions may or may not be aligned with your values.
Simple Steps For Incapacity Planning
We always advocate creating an estate plan that encompasses plans in case you can’t make decisions for yourself. Even if you don’t have a will, trust, or estate plan in place, we still recommend going through these simple steps to plan for a potential emergency rendering you incapacitated. Then, share it with your healthcare team, your partner or spouse, and immediate loved ones to ensure they understand and are willing to carry it out if needed.
First step to being prepared for incapacity: Fill out your advance medical directive
Healthcare facilities often promote advanced medical directives, but those copies may not be thorough enough to really get into the nitty-gritty of things. And you may not have made copies or shared those answers with loved ones. If you haven’t done so already, we recommend completing a more detailed and personal version. They are available online for free. Or, consider spending a very reasonable $5 and ordering a Five Wishes booklet.
In addition to covering all of the core basics of an advanced directive and outlining who should (or shouldn’t) make decisions for you, the booklet includes a wealth of information on each section to help users understand their options. It’s an incredible estate planning tool. Once it’s properly witnessed and signed, California recognizes it as a legal document.
Choose guardians for your children
If you have minor children or children with special needs, it’s essential to make decisions about who should care for them if you can’t. In some cases, it may only be for a few days or a week as you’re recovering in a hospital. Other guardianship situations are longer-term or become permanent, depending on the medical event’s outcome.
Choose your children’s guardians wisely and in alignment with who you feel will raise them the way you’d want them to be raised. This may be someone outside the family, and that’s okay. Your children’s well-being comes first before anyone’s hurt feelings.
Who will make legal and financial decisions for you?
Sometimes people want the same person to make medical, legal, and financial decisions. In many cases, a spouse is automatically the designated decision-maker (but not always, especially if the spouse has dementia or health issues that make it challenging for them to take care of the executive decisions).
Also, if an acute medical emergency is the cause of incapacity, you may not want the same person to handle the medical and legal/financial decisions because it may be overwhelming for them. Sometimes, it makes sense to designate a Power of Attorney (POA). However, if you are younger and healthy, a POA isn’t necessary. What is necessary is a written designation about who you want to make those decisions, ensure they are comfortable with that, and then draw up something in writing that you both sign and have witnessed. An estate attorney can help you with that.
Don’t forget about the pets
If you’re a pet owner, it’s a good idea to create a plan for who will take care of your pets in case of an emergency. They are often forgotten in the hectic shuffle, so knowing who the pet contact is, ensuring they have a key to the house and instructions for care, ensures your furred and feathered friends are taken care of until you’re able to again.
Create your will or trust
If you’ve gotten that far, you might as well begin creating instructions for a will or trust. By this point, you have so many items in place that it’s worth scheduling a consultation with an estate planning attorney to learn more about the process and how to proceed.
One very simple step in this direction is logging into every financial account (savings, checking, investments, retirement funds, etc.). Each one has a page or instructions on selecting beneficiaries. All you need is the individual’s name and social security number. You can choose a single beneficiary – or multiple beneficiaries – for each account. If you choose multiple beneficiaries, they’ll have you state which percentage of remaining funds goes to each beneficiary. This one act keeps those funds out of probate.
However, without a written will or trust in place, the remainder of your assets move into probate, where they’re distributed according to California’s intestate succession laws. These laws are 100% rooted in your family tree, which means any assets you have may not go to who you would have chosen.
Here in the Bay Area, there are a wealth of death doulas, funeral homes, and end-of-life coaches that provide professional guidance in creating detailed end-of-life plans. However, you can also write basic instructions to ensure people know what you want after you die:
- Do you want to be buried or cremated?
- Where do you want the burial to occur? Or where would you want the ashes to go?
- Do you want a funeral or a celebration of life?
- Are there any special songs or videos you’d like played?
Giving people some kind of outline about your after-death wishes makes their process that much easier during a very emotionally challenging and sensitive time.
Let Tseng Law Firm Help You Get Prepared For Incapacity
Even if you’re not ready to create a complete estate plan, Tseng Law Firm is here to help you plan for incapacity. In a single session, we can get you well on your way toward having peace of mind about what will happen if you aren’t able to make decisions.