When most people think of incapacity they envision someone in their golden years who is suffering from an age related dementia disease such as Alzheimer’s. This is certainly one way that you could become incapacitated during your lifetime; however, it is not the only way. In fact, incapacity can strike anyone, at any time. Because you have likely not given the possibility of incapacity much thought you have probably also not considered who will make decisions if you are incapacitated. Once you stop and consider that question you may be prompted to add an incapacity plan to your overall estate plan if you have not already done so.
Statistics tell us that the average worker has a one in 10 chance of suffering from incapacity before reaching the age of retirement. This could be a short-term incapacity or a long-term incapacity. Imagine, for example, that you are in a tragic car accident tomorrow that leaves you in a coma. Who will make medical decisions for you? Who will handle your finances? Who will pay your bills? Who will take care of your children? Without an incapacity plan the answers to some of these questions are not clear.
If you are legally married your spouse will have the legal authority to make most decisions for you; however, it is not wise to rely on the assumption that your spouse will have absolute control over everything because it is not always that clear. If you are not legally married it becomes even more difficult to predict who will be making decisions for you if you become incapacitated. You may have a life partner whom you would trust completely to make medical, financial, and parenting decisions during your incapacity but your partner may not have the legal authority to do so. In this scenario, your partner would likely need to petition a court for the authority to make any decisions for you. If an adult child, a parent, and ex-spouse, or friend does not feel that your partner should be granted the decision-making authority a court battle can ensue.
As you can see, knowing who will make decisions for you in the event you become incapacitated is not always possible if you have not created an incapacity plan. If it is important to you to know who will have decision-making authority over you, an incapacity plan is the answer. Talk to your estate planning attorney about what documents you need to create and execute to ensure that the right people are making decisions for you if you one day become incapacitated.
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