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Incapacity Planning: As Important as Estate Planning


An extremely important element to any estate plan is creating an ancillary, or supplemental, plan to take care of your affairs if you become incapacitated. Every adult should have a written plan to let your loved ones know what you want if something were to happen and you could not make decisions about your finances or your health care

We call these written instructions Advance Directives, and every Harris Law Firm estate plan includes them.

What is an Advance Directive?

Advance Directives are comprised of a durable financial power of attorney, a durable medical power of attorney, and a living will, sometimes known as a do not resuscitate order.

The powers of attorney are ‘durable’ which means that they become effective when you are deemed incapacitated, and they cease if you are no longer incapacitated and regain capacity to handle your affairs. Most of our clients choose to include a clause in their powers of attorney that require two physicians to determine incapacity, and some require a panel of physicians to make this determination. These choices are yours to make and the reason why it is important to put your decisions in writing.

In the first two documents, you will appoint an ‘agent’ to manage your affairs or health decisions. A financial power of attorney allows you to appoint your ‘attorney in fact’; someone who stands in for you on as many financial rights and powers as you provide in writing for them to assume. If you become incapacitated, this attorney in fact can act on your behalf in a wide range of business affairs including banking and real estate matters, continuing most of the operations of your self-owned business, paying your bills, including your mortgage, and more. Your attorney in fact has the power to keep your finances and obligations in good standing when you cannot.

In the case of the medical power of attorney, your agent is the person you appoint to make decisions about your medical care if you become unable to make those decisions yourself. Your health care agent may be a family member or a close friend who you trust to make serious decisions. The person you name as your health care agent should clearly understand your wishes and be willing to accept the responsibility of making medical decisions for you. In either the financial or health care power of attorney, you can appoint a second and third person as your alternate health care agent(s). The alternate(s) will step in if the first person you name as the agent is unable, unwilling, or unavailable to act for you.

We all know stories of people who were injured or became ill and thus were unable to communicate to their family how to pay their bills or worse, what steps they want their doctors to take if they cannot recover. Sometimes, without these written orders, your friends or family must either make these difficult decisions or petition a court of law to appoint a guardian and conservator who will make these decisions on your behalf. Or perhaps even worse, your family members could fight over who makes these decisions, thus costing time, money and disharmony.

Having all these wishes expressed in writing will provide peace of mind to you and your loved ones. These directives can offer an effective resolution to family disputes and anxiety. We can help you craft your own Advance Directives that meet your needs and those of your family and other loved ones.

If you have questions about advance directives or how The Harris Law Firm can assist with your estate planning needs, call or contact us online.

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