Estate planning involves more than thinking about what happens to your property when you die. This is only one piece of the puzzle. It is equally, if not more, important to consider incapacity planning to ensure that your family members are able to take care of you when you are no longer able to take care of yourself.

Importance of Incapacity Planning

Incapacity can strike when we least expect it. We cannot control the future, but we can put a plan into place that will protect you and your family if the time comes.

Incapacity planning is important if you have a family history of dementia and Alzheimer’s disease because this type of diagnosis could result in lack of legal capacity to manage your own affairs. However, you could also get hit by a bus tomorrow, or have a poor reaction to anesthesia in a routine surgery that results in a coma.

The aftermath of this sort of diagnosis or accident can be emotionally devastating and day-to-day care can be emotionally draining without also worrying about any of the legal paperwork. Without a plan in place, your loved ones will need to go through a legal court process in order to obtain guardianship or conservatorship just so they can take care of you. This adds additional emotional and financial stress, which in my experience is something nobody wants to put on their family in an already difficult time.

By putting together legal documents ahead of time and discussing your desires with your family, you can avoid a lot of emotional turmoil and dictate the care you desire in the event you become incapacitated.

Incapacity Planning Documents

Powers of Attorney

Arizona recognizes three different types of durable power of attorney documents. In these documents, you will give your agent authority to make certain decisions regarding your care.

Your financial power of attorney will give your agent authority to make decisions regarding financial matters. This can include:

  • Managing your finances on a day-to-day basis
  • Paying bills
  • Handling your bank accounts
  • Making decisions regarding any real estate you own, including maintaining or selling your family home or taking out additional mortgages on it

Your medical or health care power of attorney will have authority to make your medical decisions when you are unable to do so. This will involve consenting or withholding consent for medical procedures and making advance health care decisions, including whether or not to pull the plug. Because your health care proxy will need to speak with your doctors in order to make an informed decision, the health care power of attorney will provide HIPAA authorization for access to otherwise confidential medical information.

Finally, Arizona also provides a mental health power of attorney. This document allows your agent, in conjunction with two doctors, to make the determination that you need psychiatric hospitalization.

Medical Living Will

In addition to your power of attorney documents, a medical living will is an end of life planning tool that lays out the extent of medical treatment you want to receive if you are physically or mentally incapacitated.  It details how you want to spend your last days. Importantly, it gives your family permission to let you die peacefully rather than being kept alive through artificial means.

Revocable Living Trust

Even though a revocable living trust is often used to distribute possessions, it is also commonly used in incapacity planning.  Assets that are transferred into the trust can be managed while you are incapacitated by the trustee named in the trust itself.  

Initiating the Conversation

It should not come as a surprise to your adult children that they are the agents in your power of attorney documents, or that you have made certain decisions regarding your end of life treatment in your living will.

You should speak with your family to inform them of your wishes ahead of time. You should discuss the responsibility of being the trustee, power of attorney agent or successor trustee or agent to avoid questions down the road.

Often, families make an appointment with me to discuss everyone’s questions. Together, we go over all of the paperwork and talk through every question and concern. I find there is often a sense of relief at the end of these meetings because everything is out in the open.

This article does not contain legal advice or form an attorney-client relationship. It is for general information purposes only. If you have questions about planning for your family’s future or want to discuss other estate planning documents, please contact me today to set up an appointment.