Planning for incapacity is not something estate planners always immediately think of but it is as important as other parts of their estate plan. It addresses what medical care they want to receive, or do not wish to receive, and who will be directing that medical care and handling their financial affairs. Estate planners should know how to set up an incapacity plan.
What to include in an incapacity plan
For their financial affairs, estate planners should have:
- A durable power of attorney for financial affairs naming a trusted individual to direct their financial affairs; and
- A revocable living trust for their assets and property.
For their medical affairs, estate planners should have:
- A durable power of attorney for medical care and treatment naming a trusted individual to direct their medical care and treatment;
- A living will outlining the medical care and treatment they wish to receive; and
- A HIPAA authorization form for the release of their medical records
How to select an agent for an incapacity plan
There are several factors to take into account when selecting an agent to manage the estate planner’s medical and financial affairs if they are unable to do so for themselves. Important considerations include:
- Where the selected agent lives
- What pressures the selected agent has on their time
- How much time they will be able to devote to their duties should they be needed
- If they have any healthcare or financial expertise
It is not necessarily a requirement for them to live near the estate planner, have significant amounts of free time or expertise related to finances or healthcare but it might be useful if they do. The estate planner should carefully consider the importance of each of these considerations, recognizing that naming an agent for their incapacity plan is an important part of their estate plan.