Planning for Incapacity

Although it is very unpleasant to contemplate being incapacitated, whether through gradual illness or sudden tragedy, it is a great gift to our loved ones to prepare for such an event. If you do not make appropriate end-of-life decisions ahead of time and document your desires, your family may be torn apart by conflict or burdened by financial and legal hassles should you be rendered unable to make decisions for yourself.

Many will recall the case of Terri Schiavo, a young woman who suddenly became incapacitated by cardiac arrest, and unfortunately, did not leave any documentation about her wishes regarding life support and medical treatment. Her mother and husband disagreed about whether to continue her life support and were embroiled in intense legal battle for more than a decade from 1990 to 2005.

Terri Schiavo’s case is obviously extreme, but is nonetheless possible for anyone who has not prepared some simple documents stating his or her wishes for medical care in the event he or she is unable to decide for themselves.

What is Required to Plan for Incapacity?

All that is needed to properly prepare for incapacitation is an advance health care directive and a durable power of attorney for finance. The first document takes care of any medical decisions that need to be made and the second covers all financial matters that would need to be handled.

An advance health care directive includes two main components:

  1. A living will: Also known as a directive to physicians, health care declaration, medical directive, or health care directive, which states your wishes about life support and other kinds of medical treatments.
  2. A durable power of attorney for health care: Also known as a medical power of attorney, power of attorney for health care, designation of surrogate, or patient advocate designation, which names another person who has permission to make medical decisions for you while you are incapacitated.

For financial decisions, all you really need is a durable power of attorney for finances. This document names another person who has permission to manage your financial affairs in the event you are incapacitated. This power may be in effect immediately upon signing of the document, or may be something that only springs to effect once you are declared incapacitated.

The following posts will discuss these documents in more detail, what key factors to consider when planning them, and the basic procedural steps needed to make them legally valid. If you desire legal assistance when planning for incapacity, get in touch with our firm’s probate and estate planning lawyer in Alameda County today!