No one expects to lose the ability to make their own decisions, but conditions like dementia, strokes, or traumatic brain injuries can strip people of that ability — sometimes earlier in life than expected, and stress the importance of incapacity planning.
Incapacity planning is an important part of the estate planning process. It involves preparing legal and financial documents that help ensure a person’s wishes are honored if they are no longer able to make decisions for themselves. Starting the advance care planning process may seem challenging at first, but it can make things easier for you in the long run and is one of the most compassionate things a person can do for their family.
Incapacity planning involves legal instruments that can be grouped into two general categories: financial and medical.
Financial Documents
Two financial instruments you should consider creating are a durable financial power of attorney and a revocable living trust.
- Durable Power of Attorney (POA). This standard estate planning document allows a trusted individual to manage financial and legal affairs if the person loses capacity, whether as a result of illness, injury, or aging.
- Revocable Living Trust. A revocable living trust can help manage a person’s assets without the need for court intervention, such as guardianship or conservatorship.
Medical Documents
Advance health care directives, also known as advance directives or health care directives, are legal documents that outline a person’s medical preferences if they become unable to communicate or make decisions for themselves.
These documents ensure that health care providers and loved ones understand a person’s wishes regarding medical treatment. This can reduce confusion and stress during critical moments and remove the burden of indecision and blame from the family members who want the best for their incapacitated loved one but may have conflicting views on proper medical or end-of-life care.
Advance directives that will help loved ones in the event of incapacity include:
- Living Will. This document helps prevent unwanted or unnecessary medical interventions by specifying which medical treatments a person wants – or does not want – in case they become terminally ill or permanently unconscious.
- Health Care Proxy. This document designates a trusted person to make medical decisions on behalf of an incapacitated individual. This differs from a living will because it allows the proxy to make decisions in unforeseen situations, not just those covered in a living will. Choosing a proxy who understands your values and medical preferences will help ensure your health care wishes are adhered to.
- Do Not Resuscitate (DNR) and Do Not Intubate (DNI) Orders. A DNR order tells medical staff not to perform CPR if a person’s heart stops beating, and a DNI order instructs doctors not to use a ventilator (breathing machine) if a person stops breathing. These forms must be completed with a doctor and are typically placed in medical records or displayed at home for emergency responders.
Plan for Incapacity With an Estate Planning Attorney
Though having conversations about incapacity may be difficult, it can help provide peace of mind and allow families to focus on what truly matters — supporting and cherishing their loved ones. After talking with your family members about your medical and financial wishes, speak to the experienced estate planning attorneys at Kurre Schneps to help you create an estate plan that makes your incapacity planning official.
