Incapacity planning involves customizing and preparing legal documents to allow a trusted person or group to carry out medical care, financial decisions, and personal decisions on someone’s behalf. While planning can provide countless benefits for you and your loved ones, many people only begin preparing after the diagnosis of a debilitating or terminal illness. Careful preparation can lessen stress for loved ones when you cannot care for yourself. Planning also allows you to control many aspects of your future life even if you cannot make those crucial decisions at the time because of impairment. For help with incapacity planning, consider calling a compassionate San Francisco estate planning attorney from Von Rock Law at (866) 720-0195 to schedule a consultation.
What Is Incapacity Planning?
Life is unpredictable, and preparing for unpleasant circumstances can protect a person’s choices and future. Incapacity planning is a crucial part of estate planning. Preparation allows individuals to make essential financial, personal, and healthcare decisions now in case they cannot make them in the future. Planning enables people to control their assets and eliminate the potential for others to make critical choices they would not make. An estate plan can include an incapacity plan tailored to the person’s unique goals and desires.
What Does Legally Incapacitated Mean?
Legal incapacitation, which may be temporary or permanent, means that the person loses the ability to handle his or her own personal affairs or care. After incapacitation, the person may lose the ability to address essential decisions regarding finances, legal management, property, medical care, and more. The law also prohibits legally incapacitated individuals from entering into contracts, making it crucial to plan ahead. When someone loses the ability to handle legal, financial, or other matters or self-care, someone must step in to decide on his or her behalf.
What Are Examples of Incapacitated People?
The law considers people who are unable to care for themselves or manage their own affairs to be legally incompetent. Without careful incapacity planning, families must petition the court and request that the judge declare their loved one unfit to make sound choices and manage affairs independently. This is a time-consuming and mentally draining process. However, preparing an estate plan in advance can safeguard loved ones from this task if the unexpected occurs. A person may become mentally incapacitated due to any of the following:
- Alzheimer’s and dementia
- Mental disabilities
- Traumatic brain injury
- Permanent disabilities, including the sudden loss of hearing or eyesight
According to California Probate Codes § 4670 – 4678, adults must have the mental capacity to execute legal documents and make legal, financial, and medical care decisions. When determining incapacity, the court will consider whether the person lacks the cognitive ability to understand the gravity of legal actions and remember the nature of situations regarding his or her estate and relationships with family members.
A Guide to Incapacity Planning
Careful incapacity planning means taking precautionary steps to prepare for the unexpected in the event of temporary or permanent incapacity. A knowledgeable estate lawyer at Von Rock Law may be able to guide you through the incapacity planning process and help create a plan based on your unique needs and desires. When creating this plan, it helps to remember the following:
- Planning is essential for every adult of any age.
- The individual can review and change his or her mind about decisions and plans.
- Advanced healthcare directives offer peace of mind by naming family members and healthcare professionals who will fulfill the person’s wishes and goals.
What To Consider Before Incapacity Planning
A Last Will and Testament (will) functions after the testator’s death. A living trust, however, provides the power to make vital decisions in the event of incapacity. A living will, or advanced directive, differs from a will by outlining the person’s wishes regarding medical care, procedures, and lifesaving measures. Incapacity planning allows individuals to prepare for unforeseen circumstances and acts as an extension of the overall estate plan.
Incapacity Planning Protects the Planner and Loved Ones
Watching a parent’s or other family member’s mental and physical deterioration can be a painful experience, and the sudden stress of making decisions without preparation can be overwhelming. Without a plan, many family members will need to navigate the complex process of requesting conservatorship while struggling to come to terms with their loved one’s condition. Careful preparation, therefore, protects family members from additional heartbreak and stressors while they carry out their loved one’s final wishes.
Who Makes Decisions After Incapacity?
A significant part of incapacity planning involves selecting the agents to carry out the person’s wishes and handle vital decision-making processes. A power of attorney is flexible and allows the individual to choose people they trust the most to act as personal representatives. According to California Healthline, the court will appoint a surrogate on behalf of a patient without a plan or directive appointing representatives.
Advance Care Planning: Advance Directives for Health Care
Preparing for incapacity through advance care planning is a vital part of estate planning for adults of all ages. Preparation involves conversations regarding medical care preferences with loved ones and preparing advance directive documents. A person can enjoy legal protections for the unforeseeable future while having the right to update, change, or revoke the advance health care directives at any time and for any reason so long as they have the legal capacity to do so.
Advance care planning protects family members from making emergency medical care decisions and ensures that they will understand their loved one’s wishes. According to the National Institute on Aging, advance directives include the following legal documents:
- The living will
- A durable power of attorney for future medical and healthcare decisions
- Physician orders for life-sustaining treatment
- A do not resuscitate (DNR) order
- Organ and tissue donation documents
- HIPAA authorization
Contact an Experienced Estate Planning Attorney Today
Preparing for the possibility of incapacitation protects your best interests and your loved ones should you lose the ability to make decisions or care for yourself. Careful preparation streamlines the process and ensures that people you trust will understand and carry out your desired goals. Planning for personal, financial, and medical care choices can protect the people you care about the most. If you have incapacity planning questions, consider contacting an experienced estate planning lawyer from Von Rock Law by calling (866) 720-0195 to schedule a consultation.
