Understanding incapacity and what it means for you does not have to be a thing of mystery. Planning for the distribution of your estate assets is certainly one important aspect of your comprehensive estate plan; however, it should not be the sole focus of your estate plan. On the contrary, a well-thought-out estate plan should include a variety of additional inter-related components, including an incapacity plan. The uncomfortable reality is that incapacity can strike anyone at any time. The Coral Gables estate planning attorneys at Stivers Law explain why planning in this case is important.
Understanding Incapacity
When you hear the word “incapacity” you may immediately envision an older individual suffering from Alzheimer’s, or a similar age-related condition. While age-related dementia diseases do cause incapacity, incapacity is not limited to the elderly. In fact, incapacity can be caused by a virtually endless number of scenarios. A tragic car accident could leave you incapacitated as could a debilitating illness. Anything that leaves you unable to make healthcare, financial, and/or personal decisions could result in you being considered legally incapacitated.
Moreover, the odds of suffering a period of incapacity are probably higher than you realize. In fact, statistically speaking you stand a one in five chance of being incapacitated at some point during your working years. Once you enter your retirement years, the odds of becoming incapacitated increase dramatically, due in large part to the odds of suffering from Alzheimer’s disease or another age-related dementia condition. One in three seniors is suffering from Alzheimer’s, or a similar condition, at the time of their death. Given your odds of suffering from incapacity at some point down the road, incapacity planning should be part of your comprehensive estate plan.
What Happens If I Do Not Have an Incapacity Plan?
Sometimes, the best way to explain why it is important to do something is to explain what happens if you fail to do it. With that in mind, imagine for a moment that you are incapacitated tomorrow. Then ask yourself the following questions:
- Who will take over control of your assets, including financial accounts and your home?
- Who will pay your bills if you’re bedridden?
- Who will take care of your minor children?
- Who will make healthcare decisions for you?
- Who will make personal decisions for you?
In the absence of an incapacity plan that addresses those questions, the answers will likely be in the hands of a judge. Moreover, your loved ones could wind up in a protracted, and costly, legal battle over the right to control your assets and/or make decisions for you. Do not assume that a spouse will always have the right to take over in the event of your incapacity unless you have specifically granted your spouse that right in your incapacity plan. In short, by not having an incapacity plan in place if you become debilitated, you give up the right to make important decisions that could impact your finances, your health, and life in general.
Understanding Incapacity: How Can A Plan Help?
By including an incapacity planning component in your comprehensive estate plan, you alleviate the possibility of your loved ones battling over the right to control you and/or your assets. More importantly, you get to decide who will fill those roles in the event of your incapacity. Knowing who will take over control of our finances and assets and who will make medical and/or personal decisions on your behalf if you become incapacitated provides you with invaluable peace of mind. Incapacity planning utilizes legal tools, such as a revocable living trust, a power of attorney, and/or advanced directives to ensure that your wishes are honored if you ever become incapacitated.
Contact Our Coral Gables Estate Planning Attorneys
For more information, please join us for an upcoming FREE webinar. If you have additional questions or concerns about incapacity planning, contact the experienced Coral Gables estate planning attorneys at Stivers Law by calling (305) 456-3255 to schedule an appointment.
Justin serves as a member of the American Academy of Estate Planning Attorneys (AAEPA), a national organization comprised of legal professionals concentrating on estate planning. As a member of the Academy, he receives ongoing, comprehensive training on modern estate planning techniques.
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