Why Everyone Needs a Plan for Incapacity, Not Just a Will

When most people think about estate planning, the first thing that comes to mind is writing a will. But preparing for what happens after you die is only half the battle. Another important and too often overlooked part of an estate plan is making sure you’re protected if you become incapacitated. Illness, accidents or cognitive decline can strike at any age. A complete plan addresses who will step in to manage your medical and financial decisions if those contingencies arise.

Incapacity means you’re unable to pay your bills, make medical choices or share your wishes with family or doctors. Examples are a stroke, a serious car accident, dementia or a temporary coma. These events leave families scrambling. Without prior planning, your loved ones could find themselves tangled in court proceedings, facing painful delays and uncertainties at the worst possible time.

Incapacity planning hinges on a few critical documents:

• Durable financial power of attorney — This allows you to designate a trusted person to handle banking, pay bills, file taxes and manage legal matters if you’re unable to. “Durable” means this authority remains valid even if you lose capacity. Without it, financial institutions can freeze your accounts, mortgage payments could be missed and your assets may be left in limbo. 
• Durable health care power of attorney — Known in Michigan as a patient advocate designation, this empowers someone you trust to make healthcare decisions on your behalf in the event you cannot do so. It can include your preferences for the types of medical care you wish to be given or withheld in the event you fall into a permanent vegetative state.
• HIPAA authorization — This specifically allows your chosen people to access your private medical information. Without this form, even a spouse or adult child might be shut out of important conversations with doctors.

Proactively planning for incapacity ensures your finances are managed and medical choices are made according to your values. It allows you — not a court — to control who steps in and how matters are handled. Without an incapacity plan, your family might have to petition the court for guardianship or conservatorship: a public and costly process in which a judge decides who takes over your affairs. This uncertainty and conflict can put a tremendous emotional strain on families already under pressure.

Remember, a will takes effect only after you die. Incapacity planning protects you and your family while you’re alive. Talk with an estate planning attorney as soon as possible to address this important need.

Otlewski & Maloney, P.C. in Rochester Hills provides Michigan residents with experienced legal assistance in all aspects of estate planning. Call us at 248-759-5641 or contact us online to set up an appointment.