Incapacity planning is an often overlooked but crucial aspect of estate planning. It ensures that your wishes are respected and your affairs are in order if you become unable to make decisions for yourself.
State Intervention
The pitfalls of adult guardianship, known as conservatorship in some states, highlight the importance of this planning. Without proper documents, a court may appoint a guardian to make decisions on your behalf. This often leads to lengthy, costly, and public proceedings.
To maintain control and privacy, consider these key components: a living will, durable power of attorney for healthcare or healthcare proxy, HIPAA release, durable financial power of attorney, and disability trustee designation if you have a living trust.
Adult Guardianship
Guardianship can be a complex and invasive process. If you become incapacitated without proper documents, a court may need to step in. Unfortunately, this process can be distressing for your family, as they may not be on the same page about the best way to proceed.
Guardianship proceedings can also be time-consuming and expensive. Moreover, they are public, which can lead to unwanted scrutiny of your personal affairs.
Living Will: Your Life Support Wishes in Writing
A living will is a vital document that outlines your life support preferences should you become incapacitated. Furthermore, it specifies what medical actions should be taken in various scenarios, ensuring that your wishes are known and respected.
This document can relieve your loved ones from the burden of making tough medical decisions during emotional times. It can also prevent disagreements among family members.
Durable Power of Attorney for Healthcare or Healthcare Proxy
This document allows you to appoint someone you trust to make healthcare decisions on your behalf if you’re unable to do so. The person you designate, your healthcare proxy, will have the authority to make decisions for you that are not related to the situations covered in the living will.
HIPAA Release: Ensuring Access to Vital Information
A HIPAA release form is crucial for incapacity planning. It allows your healthcare proxy to access your medical records. Without this release, privacy laws prevent your loved ones from obtaining the information necessary to make informed decisions about your care.
Durable Financial Power of Attorney: Managing Your Finances
A durable financial power of attorney designates someone to handle your financial affairs if you become incapacitated. This can include paying bills, managing investments, and handling other financial matters.
It ensures that your finances continue to be managed effectively, avoiding potential issues like unpaid bills or unmanaged assets.
Disability Trustee Designation
If you have a living trust, a disability trustee designation is essential. This designates someone to manage the trust’s assets if you’re unable to do so. Without this designation, there might be uncertainty about who has the authority to manage your trust, potentially leading to legal complications.
Conclusion
Incapacity planning is a critical component of a comprehensive estate plan. It ensures that your wishes are respected and your affairs are managed as you would want if you’re unable to make decisions for yourself.
By establishing a living will, executing a durable power of attorney for healthcare and finances, creating a HIPAA release, and designating a disability trustee for your living trust, you can avoid the pitfalls of adult guardianship and maintain control over your personal and financial matters.
Take Action Today!
We can help you create a holistic plan that includes an incapacity planning component so you can go forward with peace of mind. To get started, call our Tulsa, OK estate planning office at 918-615-2700.
You can reach our Oklahoma City location at 405-843-6100. Additionally, you can use our contact form to send us a message.
Since founding Parman & Easterday in 1985, Larry has led over 1,000 free, community-service education programs and helped more than 10,000 Oklahoma families go from putting off their estate plan to getting it done. His goal for every client is the same: to become the person their family calls "the one who took care of everything."
Larry is the author of three books: The Straight Shooter's Guide to Estate Planning; Estate Planning Basics; and Guiding Those Left Behind in Oklahoma. He served as Oklahoma's Secretary of State and Secretary of Commerce, and his firm is the only member of the American Academy of Estate Planning Attorneys in the state.
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