elderly person signing a document

Why You Should Have an Incapacity Plan in Place

When you are young or middle-aged, the need for an incapacity plan may seem distant and unreal. At Surprenant & Beneski, P.C., our estate planning attorneys often assist Southeastern Massachusetts clients who are focused on growing and protecting their assets and planning for a comfortable retirement but don’t (at first) see the necessity of planning for incapacity. Nonetheless, every adult should have an incapacity plan. Here’s why:

Reasons Incapacity Plans Are Critical

While young adults, newlyweds, those with successful careers, and robust grandparents may realize that death is inevitable, they often have more trouble imagining that they, or someone close to them, might end up with a long-term illness or disabling injury. Still, the reality is that nearly 70 percent of U.S. adults who survive to age 65 develop the need for long-term services before they die. This means that for the majority of the population, incapacity is just as unavoidable as death. 

Need more persuading that you need an incapacity plan? Here are some of the things having an incapacity plan as part of your estate plan can accomplish:

  • Protect your assets in the event of a medical emergency or severe illness
  • Communicate your healthcare preferences when you are unable to do so
  • Give a trusted close person the power to make decisions about your medical care when you cannot
  • Give a trusted individual the ability to take legal and financial actions on your behalf
  • Make sure that your minor children will be cared for if you become incapacitated as a single parent 

In short, by planning for temporary or permanent incapacity in advance, you make certain that you continue to have a say in your healthcare even if you are unconscious or unable to speak, and that your assets are protected (e.g. if you should require nursing home care and require government assistance in the form of MassHealth/Medicaid), and that your family will have access to the funds they need while you are out of commission.

When the Need for an Incapacity Plan Becomes All Too Clear

For many people, the need for an incapacity plan becomes suddenly overwhelming with a diagnosis of cancer or dementia, a life-altering accident, or the death of a close relative or friend who is an agemate. Others recognize their vulnerability when they become parents or go through a divorce. 

Components of a Resilient Incapacity Plan

At Surprenant & Beneski, our estate planning/Certified Elder Law Attorneys (CELAs) are qualified to help you prepare a strong incapacity plan that will include documents to protect you and your loved ones. Such a plan will likely include:

  • Durable Power of Attorney to give a trusted person the authority to make legal and financial decisions on your behalf
  • Revocable Living Trust to avoid probate and estate taxes and provide a trusted person with the ability to manage your funds; this trust should include a provision for determining your incapacity if it becomes necessary
  • Healthcare Proxy that designates a person of your choice to act as your agent and coordinate your medical care with your doctors
  • Advance Directive/Living Will to state which life-sustaining measures you want to be taken if you are incapacitated, allowing you a say in whether you want your life prolonged under particular circumstances
  • HIPAA Authorization (Health Insurance Portability and Accountability Act) to protect your private medical records, stating with whom you want your healthcare information shared

Contact Our Experienced Incapacity Planning Attorneys Today

For some people, the realization that incapacity planning is essential comes too late. Because no one can predict when an incapacitating accident, medical event, or progressive disease may strike, it is crucial to take steps to protect yourself and your family now. Contact our office to learn how we can help.