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5 Crucial Considerations When Incapacity Planning


Elderly 80 plus year old man in a wheel chair outdoors.
Like most people, when you think about estate planning you likely focus on the need to decide who will receive which assets of yours when you die. Although the distribution of your estate assets is certainly an important part of a comprehensive estate plan, it is rarely all that needs to be included in an estate plan. The additional components that you decide to include in your estate plan will depend on your own individual needs and goals for your plan; however, one component that should be in every estate plan is incapacity planning. If you are just now getting started on your estate plan, or it is time to review your plan, now is the time to include incapacity planning in your estate plan. Before you do that, consider the following five crucial considerations when incapacity planning:

  • Who would you want to have the authority to make potentially life and death medical treatment decisions for you? Although it is not a pleasant thought, take a moment to imagine that you are in a catastrophic car accident tomorrow that lands you in a coma, or otherwise unable to make decisions regarding your own medical treatment. Further imagine that a very difficult decision must be made regarding your treatment and that there are risks involved in both potential treatment options. Who would you want to make that decision? Someone has to make it. If you execute a North Carolina Health Care Power of Attorney ahead of time you will be able to decide yourself who will make healthcare decisions for you if you cannot make them for yourself at some point in the future.
  • Who do you know who has the financial and legal skills to control your assets? Can you trust that person?  Whether you have a modest estate, or you have already amassed your fortune, the assets you do have are likely the result of you hard work. Consequently, you likely do not want to put them at risk by allowing just anyone to control them if you are unable to do so yourself at some point in time in the future. As with healthcare decisions, however, someone not of your choosing could end up having control of your assets during a period of incapacity if you fail to plan ahead.
  • Would you want to receive life sustaining treatment if it was needed?  Like many people, you may have strong opinions regarding end of life medical treatment. For example, if you were considered brain dead, would you want to be kept alive by life support equipment? Do you want to be given artificial nutrition if you have a terminal illness? Do your religious beliefs forbid you from receiving certain types of medical treatment, such as a blood transfusion? If you feel strongly about the type of treatment you could receive if you are very sick, you need to memorialize those feelings by incorporating those wishes and beliefs into an incapacity planning document.
  • How complicated do you want to make the process of shifting power? An incapacity plan can use a variety of different tools and strategies that facilitate the transfer of power from you to a designated Agent. Some of those tools and strategies accomplish the transfer automatically and quickly with virtually no oversight while others require more hoops and include a certain degree of oversight.
  • Do you foresee any of your answers to the previous four questions changing in the near future?  Just as some incapacity planning tools and strategies include oversight while others do not, some are more permanent in nature than others. If you are young and unmarried there is a reasonable chance that your answers to the previous questions will be different five years from now. If you are entering your retirement years and have been happily married for decades, your answers are far less likely to change and, therefore, you would likely be safe using more permanent solutions in your incapacity plan.

Contact Us

For more information, please join us for one of our upcoming free seminars. If you have additional questions about incapacity planning in the State of North Carolina contact the experienced estate planning attorneys at The Law Offices of Cheryl David by calling 336-547-9999 to schedule an appointment.

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