The unexpected can happen at any time — and a person can suffer a debilitating illness or accident-related injury at any age. While a last will and testament only goes into effect upon your passing, it’s crucial to have the necessary legal documents in place to determine how your healthcare matters and financial affairs will be handled if you become incapacitated. With incapacity planning, you can outline your wishes, appoint someone to make decisions on your behalf, and remain in control.

Why Does Incapacity Planning Matter?

Incapacity planning isn’t just for the elderly. It’s for anyone who wants to ensure their wishes are carried out in the event of illness or incapacity. No one expects to lose the ability to take care of themselves or manage their finances. However, suffering a stroke, being diagnosed with dementia, or sustaining injuries in an accident can change everything. Planning for incapacity can give you the peace of mind you need to know that your instructions will be followed — and your loved ones will have the legal authority to step in when necessary.

Without having an incapacity plan in place, your loved ones may need to go through the costly and time-consuming court process to seek a guardianship or conservatorship if you can no longer care for yourself. Specifically, a guardianship involves appointing an individual who will make decisions regarding your healthcare, living arrangements, and other aspects of your welfare. In contrast, a conservatorship has to do with overseeing your financial matters, handling your business affairs, and managing your assets. Leaving these issues up to a judge to decide can result in consequences you had not intended.

What Tools are Used in Incapacity Planning

An incapacity plan consists primarily of two parts — medical planning and financial planning. There are several different incapacity planning tools that are available. Although an incapacity plan can be tailored based on your goals, the tools that are generally used can include the following:

• Healthcare power of attorney — A healthcare power of attorney gives another person the authority to make decisions about your healthcare and medical treatment, communicate with healthcare providers, and select facilities.
• Financial power of attorney — A financial power of attorney allows you to appoint someone who will make financial decisions on your behalf if you become unable to do so yourself. This document can include a broad range of powers, including the authority to handle your bank accounts, pay your bills, make investments, file your taxes, and deal with real estate transactions.
• Living will — In contrast with a last will and testament, a living will can be used in incapacity planning to provide instructions regarding the medical treatment you would like to receive, or not receive. Typically, this document outlines your preferences for life-sustaining measures based on your religious or philosophical beliefs. Under Ohio law, a living will goes into effect if you become terminally ill or permanently unconscious.
• DNR order — A do-not-resuscitate order, commonly referred to as a DNR order, is a directive that specifies CPR is not to be conducted if your breathing or heart stops.
• HIPAA authorization — A HIPAA authorization provides permission to a covered entity to release your medical records to a specific individual or provider. When used in connection with an incapacity plan, it can allow your doctor or healthcare provider to share your health information with your loved ones so they can make informed decisions.
• Revocable living trust — A revocable living trust can be used to allow a designated trustee to manage your assets and property if you can no longer do so yourself. With this type of trust, you would retain control over the assets while you are able, and the successor trustee would take over in the event of your incapacity.

Each person’s family circumstances and financial situation are unique. It’s best to work with a skillful estate and incapacity planning attorney who can best advise you regarding the documents you will need to ensure your needs are met and your objectives are satisfied.

How Do I Choose the People Who Will Act on My Behalf?

When you begin the process of incapacity planning, choosing the right people to act on your behalf is critical. It’s essential to choose people who understand your values, respect your decisions, and will comply with your preferences. Both your healthcare and financial powers of attorney should be individuals you trust to act in your best interests at all times.

Importantly, you don’t need to name the same agent in every document. You can select one relative to be your healthcare power of attorney and designate a different loved one as your financial power of attorney. The person whom you choose to make healthcare decisions should understand your medical preferences and be comfortable making difficult decisions under pressure. Your financial power of attorney should be a person who is responsible, organized, and trustworthy.

Contact an Experienced Incapacity Planning Attorney

At Middleton Law Offices, we work with clients regarding a wide variety of estate planning matters, including assisting individuals and their families with planning for incapacity. Offering trusted legal services for more than 100 years, we are dedicated to ensuring you have a customized incapacity plan in place that will give you peace of mind. Contact Middleton Law Offices today at 419.548.0196 for a consultation to learn how we can help.

Articles appearing in this column are intended to provide broad, general information about the law. This article is not intended to be legal advice. Before applying this information to a specific legal problem, readers are urged to seek advice from a licensed attorney.