People are living longer than ever, which is undoubtedly a good thing. However, it means that people planning for the future must consider something important: potential incapacity. Longer lifespans come with a greater risk that you will be incapacitated in some way before you pass.
If you don’t have a plan, incapacity can make it significantly harder for your loved ones to fulfill your last wishes. Below, we discuss what incapacity means, how it can affect you, and how to prepare an estate plan that accounts for potential incapacity.
What Is Incapacity?
The legal definition of incapacity is the absence of legal ability, competence, or qualification. In short, incapacitated people cannot or may not make their own legal decisions. There are many reasons why an adult may be considered incapacitated, such as:
- Dementia: Someone who has lost their memory is unlikely to be found competent to make their own legal decisions.
- Mental disabilities: Similarly, people who have developed mental disabilities due to age or an accident may no longer be able to make good decisions for themselves.
- Physical disabilities: Someone who is unconscious, in a coma, or otherwise unable to communicate due to a physical injury is unable to make any decisions for themselves.
Many of these problems are connected to advanced age or end-of-life circumstances. As such, incapacity is closely related to estate planning.
How to Adjust Your Estate Plans to Account for Incapacity
Estate plans are intended to account for many possible futures. The potential for incapacity should be one of them. A good estate plan will have documentation in place to address the possibility that you may be unable to communicate what you want in the future. The following steps can help you prepare for this possibility and ensure your wishes are respected.
1. Designate a Power of Attorney
When you grant someone power of attorney (POA), you give them permission to make certain decisions on your behalf if you’re incapacitated. You may name someone your general POA, giving them the right to make legal, financial, and medical decisions on your behalf. You can also grant one or more people a limited power of attorney so they can handle specific tasks on your behalf,
Powers of attorney are invaluable if you’re incapacitated. By drafting a POA, you ensure that someone you trust will be making decisions for you when you cannot. This increases the chances your wishes are respected, and protects you and your estate from being stuck in limbo.
2. Produce a Living Will
Also known as an advanced medical directive, a living will is a document that explains your wishes for your care if you’re incapacitated. Living wills allow you to inform your loved ones about important details like:
- How long you want to remain on life support
- What kinds of palliative or end-of-life care you would like
- Whether you’re comfortable with organ donation
You may also include a “Do Not Resuscitate” order. This order informs medical workers and loved ones what kinds of life-saving care you want. For example, you may not want to be intubated or receive significant CPR. Your POA and healthcare team will use your advanced medical directive to ensure you receive the care you want and none you don’t.
3. Revise Your Estate Plans Regularly
Your wishes may change over time. You may have children, and those children grow up. Your relationship with someone you’ve granted power of attorney may change. Your opinions on the medical care or end-of-life treatment you want may evolve. You should regularly update your estate plans for all those reasons and more.
Reviewing your estate plan ensures it always reflects your current wishes. If you become incapacitated, you won’t be able to make changes to your estate plan, even if it’s 20 years out of date. Updating it every year or two means that no matter what happens, you’re prepared.
Get Help Planning for All Possible Outcomes
Incapacity isn’t pleasant to think about, but it is a possibility. When preparing your estate, you should include contingencies for incapacitation, just in case. At the Dayton Law Firm P.C., we are ready to help you write an estate plan that addresses all possible outcomes. Please email us or call us at +1-408-758-5750 to learn more about how we can help.