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Planning for Incapacity

March 23, 2016

 As we age, the likelihood increases that we will become physically or mentally incapacitated. Hopefully, in such a situation we will have family members who can step in and help keep our affairs in order. That is not always the case, however. If no one steps in to help, courts may be petitioned to appoint someone–a “conservator”–to look after your very existence. This can happen when a person becomes incapacitated by illness and cannot make decisions.


What Can I Do?


For medical situations, a health care power of attorney—a document that identifies a person of your choosing (your agent) to make decisions for you in the event of your incapacity—should be prepared and executed. Whether you nominate a family member or friend, the key is to make sure it is someone you trust, someone who you know will care for you in the way you would want.


A financial power of attorney can also be used to appoint someone to deal with non-medical issues. This document can be set up to either take effect immediately, or only at such time as you are unable to make your own decisions. The former is known as a "durable" power of attorney, while the latter is a "springing" power of attorney. Also, consider setting up a trust to administer your assets as you age. Unlike a power of attorney, with a trust, the trustee has sole control of your assets.


All of these processes will help prevent the need for a court to appoint a conservator for you if you become incapable of managing your own affairs. Those of us who are in our senior years should recognize the increasing chance of the need for someone else to make decisions. And those of us who have elderly parents or loved ones should help them think about these issues. The time to plan for potential incapacity is now. Once someone becomes incapacitated, it’s already too late.


This article is a service of Satin Legal, Inc., your Family Business Lawyer®.  One of the main objectives of our law practice is to keep families out of court and out of conflict through thoughtful estate planning. That's why we offer a Family Wealth Planning Session™ where we help you be proactive in avoiding conservatorships and appointing people you trust to take care of you and your affairs if you later become unable to do so.  Call our office today to schedule a time for us to sit down and identify the best strategies for you and your family.


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