Estate Planning Isn’t Just About Death — It’s About Incapacity, Too

Estate Planning Isn’t Just About Death — It’s About Incapacity, Too

When most people think of estate planning, they picture dividing up their assets after death. But one of the most important reasons to plan isn’t about what happens when you die — it’s about what happens if you can’t make decisions while you’re still alive.

Incapacity can strike at any age. A sudden illness, accident, or cognitive decline can leave you unable to manage your finances, make health care choices, or speak for yourself. Without a plan, your family may face delays, costly court proceedings, and painful disagreements.

What Is Incapacity Planning?

Incapacity planning is the part of your estate plan that prepares for the possibility that you become unable to make decisions. It ensures that:

• Someone you trust can pay your bills and manage your finances.

• Your health care choices are honored.

• Your family doesn’t have to go to court to take action on your behalf.

It’s not just for the elderly. Accidents and medical emergencies can happen to anyone. The best time to plan is when you're healthy and clear-headed — not in a crisis.

Key Documents for Incapacity Planning

• Durable Power of Attorney: This allows a trusted person (your “agent”) to handle financial and legal matters on your behalf. They can access your bank accounts, pay bills, manage investments, and even file taxes if needed.

• Advance Health Care Directive (or Living Will): This lets you spell out your medical wishes and name someone to make health decisions for you if you can't. It covers situations like life support, resuscitation, and end-of-life care.

•  Revocable Living Trust: If your assets are in a trust, the person you name as successor trustee can manage them for your benefit if you become incapacitated, without going through court.
  

What Happens If You Don’t Plan? If you become incapacitated without these documents:

• Your family may need to petition the court for conservatorship or guardianship — a public, time-consuming, and expensive process.

• There may be confusion or conflict over who should make decisions, especially in blended families or among adult children.

• Your preferences for medical care may be unknown or ignored, leading to choices you wouldn’t have made for yourself.

Examples

• A 40-year-old father suffers a stroke. Without a power of attorney, his spouse can’t access his business accounts to pay employees.

• A 29-year-old woman is in a coma after an accident. Her parents and partner disagree on care decisions, and no one has clear legal authority.

• An 82-year-old man with dementia doesn’t have an estate plan. His children must go to probate court to manage his finances — costing thousands and delaying help.

Peace of Mind Starts with a Plan Incapacity planning is an act of protection. It keeps your family out of court. It prevents arguments. It ensures someone you trust is in charge, and that your values and choices are respected.

You don’t need to have every answer today. Start by choosing people you trust and working with an estate planning attorney to put the right documents in place.

Action Steps:

• Name someone you trust to handle finances and medical decisions.

• Complete a power of attorney and advance directive.

• Talk to your loved ones about your wishes.

• Fund your trust, if you have one, to avoid court delays.

• Review and update your plan every few years, or after major life events.

Please contact me with any questions.

About the Author

Kendra Hampton has nearly 20 years of legal experience. She manages her own estate planning practice and has helped hundreds of clients create and update their trust, will, and powers of attorney. Kendra is committed to educating clients on the importance of estate planning and crafting personalized planning strategies.