As an Orange County estate planning lawyer, I often find that people associate the phrase “estate planning” with the task of making final plans and ensuring that loved ones are provided for after death. While we all want to make sure that our families are taken care of when we’re no longer with them, planning for incapacity can happen during one’s lifetime and is one piece of estate planning that’s often overlooked.
For that reason, it’s important to think about what we want to happen in the event of an illness, disability, or incapacity. For example, how involved do you want your family members to be in any medical decision-making? Who do you trust to access your bank accounts and pay your bills if you can’t? Do you have specific wishes about the type of care you do or do not want as you age or if you can’t speak for yourself?
Once you get clear on your preferences, an estate planning lawyer will encourage you to create the following legal documents to make your wishes known:
Living Will
Although many people think that a “will” and a “living will” are interchangeable, they’re actually two very different legal tools. A last will and testament does not take effect until your death and deals with the disposition of your assets. A living will, on the other hand, is part of a healthcare directive and is used to document your wishes for medical care in the event you are incapable of expressing them yourself. You can also use a living will to leave instructions on what type of life-saving efforts you want to avoid and at what point you want all efforts of prolonging your life to cease.
Healthcare Power of Attorney
Not all situations can be covered in a healthcare directive. At some point, it may be necessary for someone else to make decisions about your medical care on your behalf. In order to have a say in who that person is, you will need a healthcare power of attorney. This document will give the designated person you choose the legal authority to communicate with doctors, manage long-term care, hire caregivers, access medical records, and more.
Durable Power of Attorney
Aside from giving someone the authority to make medical decisions for you if you become incapacitated, you will also want to give someone you trust the authority to handle your finances. You can do this by setting up a durable power of attorney. Many people will select the same person to serve in the roles of power of attorney and healthcare agent. However, it’s also possible to select one person to make medical decisions and another to make financial decisions. This could be a better option for some people who want to avoid putting too much responsibility on one person, or maybe they want to select people with specific skill sets to help them if needed (say one person is better at caregiving and the other is good with money management).
Incapacity Planning Is Not to Be Overlooked
When you begin the process of creating an estate plan, don’t forget to think about (and plan for) the possibility that you could end up physically or mentally incapacitated. The three documents discussed above are the basics of planning for incapacity, but your attorney may also suggest additional tools based on your family’s needs and dynamics, such as creating a living trust. If you’d like to learn all of your options to make sure that your goals are carried out and your family is protected no matter what happens, please feel free to contact our law firm at (949) 333-3702 to set up a consultation with an Irvine estate planning lawyer.
