Planning For Incapacity

planning for incapacity

Most people believe estate planning is something you do after you retire. This is a huge mistake because a well-crafted estate plan goes beyond death, including legal instructions about medical directives or who can speak for you if you cannot make decisions yourself (incapacitated).

While an estate planning lawyer can take care of all of this for you, we understand you might not be ready for that step. Even so, we encourage you to create legal documentation outlining who can make decisions for you and who will take care of your responsibilities (children, pets, bills, legal/financial decisions, work-related, etc.) when you aren’t able to.

Who Will Speak For You if You Are Incapacitated?

Anything from a car accident or unexpected such as a concussion or sudden medical emergency can cause short-or long-term incapacity – meaning your inability to speak for yourself or make critical decisions. When this is the case, medical and legal professionals look to your spouse or closest family members to make crucial decisions for you.

Unexpected incapacity can occur at any point in your life, which is why estate planning is not just for the elderly or the rich. Your ability to lay out your wishes, and identify the individual(s) best able to speak for you in honor of your desires, provides invaluable peace of mind.

Here are things to consider when planning for incapacity. Even if you don’t move forward with a complete estate plan, we highly recommend completing legal documents that honor these decisions. 

Once you’ve formalized these documents, share them with your:

Advanced Medical Directive

If you are young, feel you aren’t wealthy enough to have an estate plan, or avoid thinking about death/dying, an advanced medical directive should be the first item on your list. Unfortunately, it doesn’t take much to render you unable to voice your decisions. Regardless of how young or healthy you are, you can be rendered unconscious and hospitalized via a bike accident, falling down slippery stairs, rock climbing, or in an everyday fender-bender.

Read our post about Advanced Medical Directives and what they entail. Most importantly, they clearly state your decisions around resuscitation (how much and for how long) and various life support options. You’ll also designate a “medical proxy” who follows your medical directives for you and makes all of the decisions that come up regarding your medical care.

You can find simple Advanced Directive Forms online that are legal in the state of California. We recommend visiting Five Wishes to get started. You can also contact your healthcare provider or health insurance carrier to see if they offer legal advanced medical directive forms.

Legal guardianship for children (and pet care!)

Ask yourself who is going to take care of your children if you are incapacitated? They are the obvious choice if the other parent is still living and in close vicinity. However, it’s not always that simple.

Decide who you want to take care of your children if you require long-term hospital admission. Speak to potential guardians and get their permission. If you’re in a blended family, you may want your current partner to have visitation rights or to maintain the current routine until everyone knows more about your outcome. Laying these things out beforehand is essential to your children’s wellbeing. Then create appropriate witnessed and signed documentation. Let the children’s schools and healthcare providers have a copy of the forms to make things easier if they need to be used.

Pets are also a consideration, so we recommend all pet owners have a pet care plan in place.

Power of Attorney

A power of attorney is to your legal affairs what a medical proxy is for your medical affairs. They can make legal and financial decisions, pay bills, and take care of business until you can take over again. In some cases, the same person who acts as your healthcare agent in your advanced medical care directive may also be the one who you choose to make legal/business/financial decisions – called your durable power of attorney (DPOA).

We do not recommend moving forward with formal documentation to select a POA or DPOA without assistance from an experienced estate attorney. The person you choose as your agent must be someone you trust without hesitation. Also, the wording is essential to ensure your chosen POA or DPOA is essential to ensure they only have this ability if you are incapacitated or have died.

Last Will & Testament or a Living Trust

If you have come this far in the process, the next step is creating your will and testament. Depending on your situation, a living trust may be a better option. These documents outline how your property, assets, and possessions should be distributed if you die.

Final Arrangements

If you do wind up in a situation where you die, whether suddenly or because your health care proxy honors your wishes to end life support at the point you requested, final arrangements must be made. The more loved ones know about your wishes, the easier it is for them to move forward.

Things to consider:

  • Burial, green burial, or cremation?
  • Funeral or celebration of life?
  • Degree of formality for the ceremony and guest attire? 
  • Are there any last messages, songs, quotes, or wishes you want to be added to whatever end-of-life events are planned?

At the very least, be clear about whether you prefer burial or cremation with your immediate circle of family/friends. If you can work out the rest, even better. Working with a local funeral home is the best way to create specific instructions and pay ahead of time to alleviate the burden on your loved ones.

Need a Sounding Board as You Are Planning for Incapacity?

Would you like to learn more about planning for incapacity? Are you ready to move forward and get your legal affairs in order? Then, contact Tseng Law Firm and let us help you get started. We can keep things as straightforward as possible – planning for the basics. And later on, we’ll be here to help you create a more comprehensive estate plan.