Incapacity and Disability Planning


Incapacity and Disability Planning FAQ’s

What is estate planning?

Estate planning is how you can take care of your loved ones even after you are no longer able to do so. The three purposes of estate planning are: 1) Control your property while you are alive and well; 2) Provide for yourself and your loved ones if you become incapacitated/disabled; 3) Give what you have to whom you want, the way you want, when you want.

Estate planning addresses the consistent and hardest parts of life, which is when someone passes away. In my opinion, estate planning’s purpose is to help a family’s transition as they cope during such a difficult period in their lives. It is a gratifying and purpose-filled legal service.

Comprehensive estate planning takes the whole person into account. It involves selecting trusted individuals to carry out one’s wishes and drafting documents that carefully guide and protect future generations. Estate planning also goes beyond taxes, wealth, and medical decision making: Many people choose to include things like recorded oral histories and precious heirlooms in their plans. This makes estate planning not just about property, but about the legacy, values, and vision you want to pass along to future generations.

Do I need to do estate planning?

Every individual has different needs, and to receive a full appraisal of your needs for estate planning, I would advise you to schedule a complimentary initial meeting to discuss your situation.

What does “disabled” mean?

In the estate planning world, the term “disabled” refers to an individual’s incapacity or the inability to manage day-to-day business affairs such as managing and protecting assets, signing papers, paying bills, and filing taxes. “Disability” or “incapacity” doesn’t mean you’re laid up on the couch with a bad back; instead, it means that you don’t have the physical and mental capacity necessary to manage your personal business.

What is Incapacity Planning?

Incapacity planning means that you have the needed documents to continue to take care of yourself and your family if you ever lose the ability to make financial and medical decisions for yourself without passing away.
These documents include a Medical Power of Attorney, a General Durable Power of Attorney, a Living Will, and a HIPAA Waiver.

How can I be sure to stay in control of my property if I become disabled?

There are two options for maintaining control during a period of disability; and, often, we recommend the use of both: power of attorney and revocable living trust.

What happens if I do not have Incapacity Planning documents?

If you do not have Powers of Attorney and you become incapacitated, then someone who wants to be make decisions for you will have to apply to a court to be named your guardian or conservator. This process may take days or weeks, and multiple people may apply to be named guardian or conservator. This will make the process last longer and cost more.
Without a HIPAA Waiver, your medical providers will be under no obligation to provide your medical records or information about you to your loved ones. In fact, your medical providers may have the obligation to not provide any medical records or information.
Without a Living Will, then no decision may be made without a court order regarding end-of-life decisions, such as whether to “pull the plug” if there is not hope for your recovery.

What is a Financial Power of Attorney?

A Financial Power of Attorney is an informal name for a General Durable Power of Attorney. This document grants authority to someone that you choose to make financial decisions for you if you are ever disabled. Your Agent immediately gains this authority once you are determined to be incapacitated.

Who will take care of my finances if I become disabled?

Disability is the perfect example of why you need to appoint trusted helpers. If you have an up-to-date power of attorney, the named agent may be able to manage your finances, including paying your bills. Unfortunately, if you don’t have a legally documented disability/incapacity plan, your loved ones will battle it out in court and a judge will decide who’s in charge. Because power of attorney documents are often turned down, we use the belt and suspenders approach for many clients, including a trust with disability provisions.

TIP: Be sure to name a contingent agent in case your primary agent is unable or unwilling to serve. The same with disability trustees. Be sure to name successor disability trustees in case your named trustees are unable or unwilling to serve when the time comes.

What is a Medical Power of Attorney?

A Medical Power of Attorney is a document that grants authority to someone that you choose to make medical decisions for you if you are ever disabled. Your Medical Agent immediately gains this authority once you are determined to be incapacitated.

Who will make healthcare decisions for me if I can’t make those decisions myself?

Your agent under your health care power of attorney has the power to make healthcare decisions for you if you are unable to make those decisions yourself.

What’s the difference between my health care agent and my financial agent?

While there is some overlap, health care and financial agents are two distinct roles within an estate plan. Your health care agents, also referred to as health care powers of attorney or health care proxy, are responsible for making medical decisions on your behalf and may also implement your pre-arranged instructions if you experience incapacity. Likewise, financial agents can manage your wealth, pay bills, file taxes, purchase insurance, and adjust investments for you if you become unable to do so yourself. They may or may not be the same person; it’s up to you to decide who is best for each role.

How do I avoid being kept alive by machines if I’m brain dead?

A living will is used to avoid medical heroics such as life support at the end of life.

What is a Living Will?

A Living will is a document that governs “end-of-life” scenarios, such as when you are completely dependent upon artificial means to sustain life and there is no chance for recovery. A Living Will states, for your doctors to follow, whether you want these artificial means to be terminated.

What is a HIPAA Waiver?

A HIPAA Waiver is a document that states to your medical providers the names of individuals that you want to grant access to your medical records. This document allows your Medical Power of Attorney, family members, or whomever you desire to know your medical diagnosis and treatments.


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The Top 2 Ways the Court Gets Involved in Your Estate, and How to Avoid Them

How to Pick a Trustee, Executor, and Agent Under a Power of Attorney

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Estate Planning for Women

Incorporating Faith and Values in Estate Planning

Planning For Disability and Long-Term Care

Life Insurance: How Much and What Kind?

5 Common Estate Planning Mistakes to Avoid

Six Stages of Life When You Need Life Insurance

Living Wills are an Essential Part of Your Estate Plan


What if You Don’t Die?

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