Estate Planning: You Need an Incapacity Plan that Works When It’s Needed

Estate planning is not only about having a plan in place to deal with what happens after a loved one’s death, it is also about having a plan in place to deal with what happens if a loved one becomes mentally incapacitated. In this post you will learn:

What happens without an incapacity plan;

The essential documents for managing finances during incapacity;

The essential documents for making health care decisions during incapacity;

How to choose the right person for managing finances and making health care decisions during incapacity;

The importance of keeping an incapacity plan up to date.

Court-Supervised Guardianship or Conservatorship: How to Lose Time, Money, and Control During Incapacity

Mental incapacity caused by an accident, injury, or illness results in you being incapable of making informed decisions about your finances and well-being. Without a comprehensive incapacity plan in place, a judge can appoint someone to take control of an incapacitated person’s assets and make all personal and medical decisions on that person’s behalf under a court-supervised guardianship or conservatorship. The incapacitated person and his or her loved ones often lose valuable time, money, and control until the incapacitated person either regains capacity or dies.

Planning Tip: Many folks may believe they are protected if they become mentally incapacitated because they hold their assets in joint names with a spouse, a child, or another family member. While a joint account holder may be able to access a bank account to pay bills or access a brokerage account to manage investments, a joint owner of real estate will not be able to mortgage or sell the property without the consent of all other owners. Aside from this, adding names to accounts or real estate titles may be deemed a gift for gift tax purposes. In addition, if a joint owner is sued, the property could be seized as part of a judgment entered against them. Only a comprehensive incapacity plan will protect you and your assets from a court-supervised guardianship or conservatorship and the misdeeds of a joint owner.

The Essential Documents for Financial Management During Incapacity

There are two essential legal documents for managing finances that must be in place prior to becoming incapacitated:

1. Financial Power of Attorney. This legal document gives an agent the authority to pay bills, make financial decisions, manage investments, file tax returns, mortgage and sell real estate, and address other financial matters that are described in the document. Financial Powers of Attorney come in two forms: “Durable” and “Springing.” A Durable Power of Attorney goes into effect as soon as it is signed, while a Springing Power of Attorney only goes into effect after the person who has made the document is determined to be mentally incapacitated.

2. Revocable Living Trust. This legal document has three parties to it: The person who creates the trust (the “Trustmaker” or “Grantor” or “Settlor” – they all mean the same thing); the person who manages the assets transferred into the trust (the “Trustee”); and the person who benefits from the assets transferred into the trust (the “Beneficiary”). In the typical revocable living trust situation the Trustmaker or Grantor is also the Trustee and Beneficiary of their own trust, but if the Trustmaker/Trustee/Beneficiary becomes incapacitated, then someone else is named to step in as the Successor Trustee and manage the trust assets for the benefit of the incapacitated Trustmaker/Beneficiary.

Planning Tip: To be part of an effective incapacity plan, a Revocable Living Trust should contain provisions to determine the mental status of the Trustmaker/Trustee/Beneficiary through a private process (i.e., a disability panel, an attending physician, the opinion of two physicians, or some other method) instead of a public court process. In addition, the trust agreement should contain specific instructions about how to take care of an incapacitated Trustmaker/Beneficiary.

The Three Must-Have Documents for Health Care Decision-Making

There are three essential legal documents for making health care decisions that must be in place prior to becoming incapacitated:

1. Medical Power of Attorney. This legal document, also called an Advance Medical Directive or Medical or Health Care Proxy, gives an agent the authority to make health care decisions if the person signing the document becomes incapacitated.

2. Living Will. This legal document gives an agent the authority to make life-sustaining or life-ending decisions if the person signing the document becomes incapacitated.

3. HIPAA Authorization. Federal and state laws dictate who can receive medical information without the written consent of the patient. This legal document gives a doctor or other health care provider authority to disclose medical information to the agent selected by the patient.

Planning Tip: Your loved ones may be denied access to medical information during a crisis situation and end up in court fighting over what medical treatment you should, or should not, receive (like Terri Schiavo’s husband and parents did, for 15 years). Without these three documents, a judge may also appoint a Guardian or Conservator of the Person to oversee your health care, thereby adding further expense and hassle to the court-supervised guardianship or conservatorship. You should have these three documents examined and updated frequently to ensure they accurately reflect your wishes.

How to Choose the Right Agents for an Incapacity Plan

There are two very important decisions you must make when putting together your incapacity plan:

1. Who will be in charge of managing your finances during incapacity; and

2. Who will be in charge of making your medical decisions during incapacity.

Factors you should consider when deciding who to name as your financial agent and health care agent include:

• Where does the agent live? With modern technology, the distance between you and your agent should not matter. Nonetheless, someone who lives close by may be a better choice than someone who lives in another state or country.

• How busy is the agent? If the agent has a demanding job or travels frequently for work, then the agent may not have time to take care of your finances and medical needs.

• Does the agent have expertise in managing finances or the health care field? An agent with work experience in finances or medicine may be a better choice than an agent without it.

Planning Tip: Choosing the wrong person to serve as financial or health care agent will result in an ineffective incapacity plan. In order to create an effective plan, you need to carefully consider who to choose as your agent and then discuss your decision with that person to confirm that they will in fact be willing and able to serve.

© 2015 Odin, Feldman & Pittleman, P.C.

Disclaimer Notice: It is my intention that the comments, articles, and other information provided on this website are intended to provide you with general information which may be interesting and of value to you. You should not construe any of this information as legal advice or my opinion as it may relate to your specific circumstances. Please feel free to contact me directly if you would like to discuss your own situation and your estate or business planning needs.