Devising strategies for the efficient distribution of assets after death is indeed a foundational aspect of estate planning. But matters involving the ongoing realities of encroaching age are also a part of the equation, and this has made incapacity planning a very important facet of elder law. In fact, the need for this form of legal expertise is growing right alongside the ever-burgeoning senior citizen population.
As you enter your twilight years many questions will invariably arise. What are your medical preferences in the event of your incapacitation? What life prolonging procedures will you allow and which would you like to refuse? How do you feel about pain management? Who would you choose to make medical decisions in your behalf? Answering these questions is one facet of incapacity planning, and it is done through the execution of advance health care directives like living wills and health care proxies or durable medical powers of attorney. Living wills are documents what elucidate your medical preferences, and they can be general or quite specific. Through the execution of health care proxies or durable medical powers of attorney you select someone to make medical decisions for you should you be unable to do so.
On the financial side of things one can use the durable power of attorney as well, and in fact, the same person can be named attorney-in-fact for both medical and financial purposes. A typical standard power of attorney does not remain in effect upon the incapacitation of the granter, which is why the durable version is appropriate for incapacity planning. Many states also allow for a springing durable power of attorney, and this form “springs” into effect only upon the incapacitation of the granter.
Incapacity planning is important for all of us, and it is a vital component to any comprehensive estate plan. If you would like to learn more about how to plan for incapacitation, or to discuss any aspect of your estate, simply gave us a call (908) 222-8803 to arrange for a consultation
Alan Augulis, Estate Planning Attorney
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