Death is a certainty, so an estate plan is essential for anyone who wants to leave an inheritance. But, what if you become disabled? Disability is only a possibility, but the odds of disability are greater than death. So you should still plan for it. By doing so, you can allow for a smoother transition in the event that you become mentally incapacitated. You can also help your family avoid a court-ordered conservatorship.
Choose Your Documents
First, decide which disability planning documents are best for you and your family. The goal of most incapacity documents is to allow you to name friends or family members to act for you financially or medically.
For your medical needs you can create an Advanced Medical Directive (sometimes called a Living Will) and a Health Care Power of Attorney. An Advanced Medical Directive allows you to state your preferred medical treatment options if your doctors say you are terminal or persistently unconscious. For example, if you don’t want to be placed on life support for long, you can say so in this document. A Health Care Power of Attorney allows you to choose a health care agent to make all other medical decisions for you. Both documents are necessary so your chosen agent and doctors can understand and follow your medical wishes.
To cover your financial needs while you are disabled, you can create a Financial Power of Attorney (POA). Your POA should be a “durable” power of attorney, meaning it is still in force after you are determined to be disabled. Your POA may be either an “immediate” POA, which means it goes into effect immediately, or it may be “springing,” which means it only goes into effect if you become disabled as determined by two physicians or other criteria you establish.
Another option for disability planning is a Revocable Living Trust. Your Living Trust not only allows you to create an estate settlement plan, it also allows you to plan for your disability. Your successor trustee can handle your financial affairs while you are alive but disabled. If you want your trustee to also make medical decisions for you, advise your attorney that you wish to include this in your Trust agreement.
Name Your Agents
After you have chosen your disability documents, you must name your agents. Your chosen agents, or fiduciaries, should be people you trust to be organized, available, and loyal to your wishes. You may want to spend some time acclimating your chosen trustee, attorney-in-fact, or health care agent to your personal preferences.
Larry Parman
Attorney at Law
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