Critter Corner: Why Plan for Incapacity?

Dear Commander Bun Bun,

I read a startling statistic that less than a third of the population has completed Incapacity Planning documents. Why don’t people plan for incapacity and how can my family begin the process?

Justin Case

Dear Justin,

Thanks for your question about incapacity planning. Reasons people don’t plan for incapacity often range from a natural tendency to procrastinate, the preconception that it is a costly and complex process, and sometimes even the superstitious feeling that if you don’t ask for it, it won’t occur. Another common belief is that if we become unable to make decisions for ourselves, our family will decide what is best for us. All of these reasons can lead to difficult and emotionally-charged situations if you or a loved one becomes incapacitated, which can easily be avoided with proper Incapacity Planning.

To begin the Incapacity Planning process, seniors should sit down with their family members to openly discuss their needs and the roles of loved ones in assuring those needs are met. For more details on how to broach this conversation with a loved one, please read our blog post on the topic.

Once this important conversation occurs, and important decisions are discussed, it is important to work with a qualified elder law attorney (preferably a Certified Elder Law Attorney) to ensure that the Incapacity Planning documents listed below are in place. Doing so is the best way to ensure that your wishes are met should you become unable to make important decisions for yourself.

  • Advance Medical Directive: An Advance Medical Directive communicates your desires to your physicians and family members regarding all forms of medical treatment, and may be used to instruct your physician to withhold or implement specific life-prolonging procedures if at any time you are diagnosed as having a terminal condition and your physicians have concluded that there is no chance of recovery. Without this document, families could have serious disagreements, or someone who doesn’t share the individual’s values may be making the decisions.  Our firm includes within this document a proprietary Long-Term Care Directive, which discusses numerous issues with regard to long-term care should you ever find yourself in need of long-term care at home, or in assisted living, or in a nursing home.
  • Financial Power of Attorney: When you give someone Financial Power of Attorney , you are giving that person the ability to pay your bills and manage all your financial and legal affairs. The document typically goes into effect immediately after it is signed, but it intended to be used by your Agent only if and when needed. Failing to sign this document can result in a costly legal battle for your family in which a court will select a guardian and conservator.  Having a Financial Power of Attorney in place avoids the “nightmare of living probate” — the time consuming, expensive, and publicly embarrassing process whereby someone has to go to court to have you declared mentally or physically incompetent and then one or more persons need to be appointed to serve as your legal guardian and/or conservator, which subjects your entire estate to the nightmare of probate for the rest of your life.
  • Revocable Living Trust: A Revocable Living Trust (RLT) generally provides for the creator of the trust (and, if applicable, the creator’s spouse) to have full use of the trust income and principal for life. A major benefit of an RLT is avoiding the costly and public probate process. appointed conservatorship and lifetime probate discussed above.

If you have not done Incapacity Planning, Estate Planning, or Long-Term Care Planning, or if you have a loved one who is nearing the need for long-term care or already receiving long-term care, please contact The Law Firm of Evan H. Farr, P.C. as soon as possible at 1-800-399-FARR.  We have offices in: Fairfax, Virginia and Fredericksburg, Virginia; and we also now meet with clients by appointment in Washington, DC.

Hop this helps!

Commander Bun Bun

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