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Basic Estate Planning Questions, Part 3 – Incapacity Planning

In our third blog post on basic estate planning questions, we are going to turn our attention to a vital piece of every estate plan, incapacity planning. Incapacity planning is a process that everyone who creates an estate plan in North Carolina will go through. As you create your incapacity plan, you and your attorney will develop a variety of tools that will come into effect should you ever lose your ability to make decisions. Here are some commonly asked questions a lot of people have about incapacity planning.

Basic Question 1. What is incapacity?

Most people probably take it for granted that they have the legal authority to make their own decisions. You don’t, for example, have to ask anyone’s permission when you want to move, decide what you want to have for lunch, or make choices about any other aspect of your life.

But the same cannot be said for people who are legally incapacitated. An incapacitated person is someone who does not have the mental ability to make reasonable choices. In such circumstances, other people have to make decisions on the incapacitated person’s behalf.

Basic Question 2. What is an incapacity plan?

None of us can ever know for certain what the future might hold. Because of this uncertainty, creating an incapacity plan is absolutely essential. An incapacity plan is simply a collection of legal tools or documents that give you the ability to make choices now that will apply should you one day become incapacitated. The kinds of tools you can make, and the form they must take, are largely determined by state and federal laws. However, those laws do not require you to make any specific decision. If you make an incapacity plan, you are free to make whatever choices you would like.

Basic Question 3. What will I include in my incapacity plan?

Though every plan will have to be different to meet the needs of the person creating it, plans typically include several key pieces.

First, your plan will include tools that will allow you to name representatives. These representatives will have a legal responsibility to take over your decision-making abilities should you become incapacitated.

Second, your incapacity plan will include tools that will allow you to make specific kinds of choices that will control what happens to you upon your incapacitation. For example, your incapacity plan will include medical directives. These directives give you the ability to decide the kind of health care treatments you wish to accept or refuse.

Beyond these primary pieces, there are other tools that will address issues such as who you wish to take over parental responsibilities, who you want to run your business, and other similar issues.

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