Incapacity: A Critical & Often Overlooked Aspect of Estate Planning

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Incapacity: A Critical & Often Overlooked Aspect of Estate Planning

            People typically contact estate planning attorneys to plan for what happens to their assets when they pass away. Very rarely do I receive a call from someone expressly concerned about issues regarding their own possible future incapacity. In my experience and opinion, planning for incapacity is just as – if not more – important than planning for death.

What Is Incapacity?

            The Florida Statutes defines incapacity as “a judicial determination that a person lacks the capacity to manage at least some of the person’s property The Florida Statutes defines incapacity as “a judicial determination that a person lacks the capacity to manage at least some of the person’s property or to meet at least some of the person’s essential health and safety requirements.” Fla. Stat. 732.301(21) (2019). Basically, if you can no longer take care of yourself and your assets, you will likely meet the standard for what defines incapacity. Typically, people associate incapacity with dementia, Alzheimer’s and other conditions affecting the mind, but it can also result from injury, accidents and other medical conditions. Incapacity can be temporary or can be permanent. For example, if you are in the hospital, unconscious and on a ventilator, you are clearly incapacitated. When you wake up, come off the ventilator and recover, there is a good chance that you will regain full capacity. At the risk of sounding grim – incapacity can happen to anyone at any time.

Who Will Speak to My Doctors?

            During periods of incapacity, it’s important to ensure that you’ve appointed someone to speak on your behalf to your medical providers, as you won’t be able to advocate for yourself. A Healthcare Surrogate Designation with a HIPAA Authorization can help you accomplish exactly that. A Healthcare Surrogate Designation is a document wherein you name a surrogate and typically one or two alternate surrogates, along with his and/or her contact information, to make medical decisions for you when you cannot. Medical providers frequently inquire about these documents and routinely work with them when dealing with an incapacitated patient.

What Happens to All My Stuff?

            You must also consider how your finances will be managed if and when you become incapacitated. Paying bills, refinancing a home and simply speaking with your financial institutions regarding your accounts all become basically impossible when you become incapacitated. In this scenario, a Durable Power of Attorney is your solution. A Durable Power of Attorney is a document in which you name an agent that will stand in your shoes and manage your assets for you. An important thing to remember about a Durable Power of Attorney is that it becomes effective immediately upon signing and doesn’t wait for you to become incapacitated to become valid, so you must be sure to name the right person as your agent. A Durable Power of Attorney is relatively simple to draft and execute, and helps you avoid a costly and difficult Guardianship proceeding.

The Takeaway

            To be frank, incapacity is an unpleasant thing for anyone to consider, but unfortunately affects many people at various stages of life. Numerous medical and financial difficulties can be avoided by planning for a possible incapacity and fortunately for us, planning for it is relatively simple and low-cost. We are happy to speak with you about your incapacity concerns and help you come up with a plan tailored to your goals.

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