Much like no one wants to think about their demise, it is not pleasant to consider the possibility of incapacitation. While this might be a greater concern for the aging population in California and elsewhere, the reality is that anyone could be incapacitated in the short-term and the long-term. Therefore, it is imperative that one considers this fact and prepare for it.
Consider this. Without a will, how a person’s assets and property is distributed will be decided by the court. Thus, when someone does not have a power of attorney in place, very serious health and financial decision could be made by a person they do not want. Additionally, their wishes for that situation would not be known.
In essence, incapacity planning creates a formal and legal mechanism to assign a decision-maker in the event of incapacitation. By designating this role in an estate plan, ones is not only addressing the need for these decisions to be made, but they are also avoiding the need for the courts to get involved.
Power of attorney
When drafting a power of attorney, it is not only important to consider your wishes and the bounds of this control, but it is equally if not more important to carefully select the person afforded this power. It is also important to note that life is constantly changing. As such, an estate plan is an evolving document. Therefore, if things change, individuals pass, needs alter or situations transform, it may be necessary to modify and update an estate plan.
The person one designates for their power of attorney may not remain named. This could be due to divorce, deaths or even changes in trust and relationships. Thus, it is not only important to understand the importance of this document but also how to modify and update it as well.