It’s a common belief that estate planning means death planning. However, planning for what happens after you die is only one piece of the estate planning puzzle. It is just as important to make a plan for what happens if you become mentally incapacitated.
Without a comprehensive incapacity plan, a judge can appoint an agent (known as a guardian or a conservator) to take control of your assets and make all personal and medical decisions for you under a court-supervised guardianship or conservatorship. The guardian or conservator must report all financial transactions to the court either on an annual basis or at least every few years. The guardian or conservator is also typically required to obtain court permission before entering into certain types of financial transactions (such as mortgaging or selling your real estate) or making life-sustaining or life-ending medical decisions. The court-supervised guardianship or conservatorship will then continue until you either regain capacity or die.
As you can see from the above discussion, a guardian or conservator has an important and involved role if you become incapacitated.
Creating an incapacity plan can help you to avoid a court-supervised guardianship or conservatorship.
Rather than having a judge decide, you appoint one or more agents to carry out your wishes. There are two very important decisions you must make when putting together your plan:
Factors to consider when deciding who to name as your financial agent and health care agent (who do not have to be the same people) include:
If you choose the wrong person to serve as your financial agent or health care agent, your incapacity plan is likely to fail and land you and your assets in a court-supervised guardianship or conservatorship.
In order to create an incapacity plan that will work the way you expect it to work, you need to carefully consider who to choose as your agent and then discuss your decision with that person to confirm that they will, in fact, be willing and able to serve.
If you have questions about naming your incapacity planning agents or would like to make sure your plan will work if you need it, please contact us.
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