All of us lose abilities as we age, but not all of us will experience incapacity. When you are incapacitated you can no longer make the choices you have made your entire life. Whether you become incapacitated because you have suffered a serious injury, have a mind-altering illness, or because of any other reason, you need to be prepared for the possibility by creating an incapacity plan ahead of time. No estate plan is complete, and no adult is suitably protected, unless you have created tools that address the possibility of one day becoming incapacitated.
You cannot create an incapacity plan after it is too late.
Sometimes people come to an estate planning lawyer after an emergency arises. Perhaps it’s after a car accident has left a spouse comatose. Perhaps it is after a loved one has received a diagnosis for a medical condition involving treatments that will render him incapacitated for brief periods of time. Regardless of the cause, an incapacitated person cannot legally create an incapacity plan.
Once a court, or a doctor, has determined that you are no longer capable of making choices, no attorney in the world will be able to help you make an incapacity plan.
If you want to make an incapacity plan you have to do so when you are capable of making choices.
You cannot guarantee your choices will be honored.
Let’s say you’re involved in a severe car accident. Though you live through it, you’re hospitalized for weeks, and are unconscious or incapacitated for most of that time. What happens to your property? Who manages it? Who will talk to your doctors and let them know what kinds of treatment you wish to accept or refuse?
If you don’t have an incapacity plan, none of your answers to those questions will matter. An incapacity plan is the only way to protect your choices in the face of incapacitation.
You cannot predict the future.
“I’m young,” you say. “I’m healthy. I have no family history of cancer, or dementia, or anything else. Therefore, I don’t need an incapacity plan.”
All of that might be true, but determining that you won’t be incapacitated because of your present circumstances or personal history ignores a key fact; you cannot know what the future holds.
Will you be healthy tomorrow? Probably. Will you be healthy for years, or even decades, to come? There’s a good chance.
But if you have no incapacity plan, you’re walking life’s tightrope without a net. You are relying on good fortune to protect you and your family. That’s fine if nothing happens, but if something does happen and you don’t have the right plan in place, it will very possibly have a devastating effect on you and your family.