Planning For Incapacity

Nearly as unpleasant as contemplating death, is contemplating incapacity—the substantial impairment of one’s physical or mental faculties, whether temporary or long-term. While no one finds it easy to face the prospect of incapacity, failing to plan for the same can have dramatic negative consequences.

Financially, without proper planning, neither a legally incapacitated individual nor family member may have access to the individual’s financial resources, allowing unpaid bills to mount up, credit to be damaged, and liens on assets to be imposed. Property may waste while no one manages it, and investments can suffer with no one at the helm. An individual may also lose the advantages of timely and appropriate exercise of contractual or tax rights.

The medical consequences of incapacity may be equally damaging. Medical or mental health needs may go unaddressed because no one is authorized to consent to treatment for the individual. Choices for appropriate living arrangements or long-term care may be ignored because no one has authority to arrange for admission or entry to a suitable facility. In the absence of a valid legal document it may be unclear to the physician who has the authority to make therapeutic and course-of-treatment decisions on an incapacitated person’s behalf.

Without advance planning, managing an individual’s person and property will typically require probate court proceedings to establish a guardianship (control over a person) or conservatorship (control over a person’s assets). While these measures provide some degree of protection for the disabled person, their achievement can be extremely time-consuming and expensive. However, the greatest loss from having to resort to guardianship or conservatorship is the loss of the individual’s personal autonomy and control: the person under guardianship cannot choose who his or her legal representative will be, and such representative will require court approval for many of his or her duties.

Fortunately, there are a number of highly effective estate-planning measures that can ensure the efficient management of an incapacitated person’s healthcare and assets. As part of the estate-planning process, D’Ambruoso & Freed LLP’s attorneys will evaluate client needs to suggest appropriate instruments, ranging from the simple—healthcare proxies and durable powers of attorney—to the complex—revocable and special needs trusts. Count on Freed Law LLC to come up with a “right-sized” incapacity plan that will give you peace of mind.

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