Comprehensive estate planning involves more than just planning for your legacy after your death, avoiding probate, and reducing taxes. Good estate planning also appoints people to make legal, financial, and medical decisions for you if you are alive but unable to make those decisions for yourself (in other words, if you are incapacitated). While no one wants to consider a time when they might not be able to make important decisions for themselves any longer, incapacity planning is becoming more important for estate planning.

What Happens Without a Plan for Incapacity?

When facing the issue of capacity and your assets, if there is no estate plan or incapacity plan in place, it can be all but impossible for your family and loved ones to make decisions or access important information (especially financial). The most ironclad way to determine who has the ability to make decisions and care for you is for someone to become your legal guardian.

While the concept varies from state-to-state, in Texas, a Guardian of the Person makes all day-to-day personal and medical decisions on your behalf, including determining where you will live. A Guardian of the Estate makes all financial and legal decisions on your behalf. These roles may be filled by the same person or by two different people, depending on the circumstances and your preferences.

When choosing who to name as your guardian, the court will look to your family and other close relatives. Keep in mind that the court may not appoint the person or people for these roles that you would have chosen. Until you regain capacity or pass away, you and your loved ones will have to endure expensive, public, and time-consuming court proceedings, which may include filing annual reports and obtaining prior judicial approval for certain actions.

Overall, there are two aspects of incapacity planning that must be considered: financial and healthcare.

• Finances during incapacity. If you are incapacitated, you are legally unable to make financial, investment, or tax decisions for yourself, but your bills still need to be paid, tax returns still need to be filed, and investments still need to be managed.
• Healthcare during incapacity. If you are unable to communicate (for example, if you are in a coma or under anesthesia), you will not be able to make healthcare decisions for yourself. Without a plan, your loved ones may even be denied access to your medical information during a medical emergency. They may also end up in court, fighting over what medical treatment you should or should not receive (like in the case of Terri Schiavo, whose husband and parents did for 15 years).

To avoid these problems, you should have these five essential legal documents in place before becoming incapacitated so that your loved ones are empowered to make decisions for you:

1. Financial Power of Attorney. A financial power of attorney is a legal document that gives your trusted decision-maker (the agent) the authority to pay bills, make financial decisions, manage investments, file tax returns, mortgage and sell real estate, and address other financial matters for you that are described in the document. Financial powers of attorney come in two forms: immediate and springing. An immediate durable power of attorney allows your agent to act for you as soon as you sign the document. A springing power of attorney, on the other hand, is legally valid when you sign it, but your agent can only act for you after you have been determined to be mentally incapacitated. There are advantages and disadvantages to each type, and it is important to discuss these with an experienced estate planning attorney to help you decide which is best for your situation.
2. Revocable Living Trust. A revocable living trust is a legal document that has three parties to it: the person who creates the trust (also known in Texas as the Grantor); the person who legally owns and manages the accounts and property transferred into the trust (the Trustee); and the person who benefits from the accounts and property transferred into the trust (the Beneficiary). In the typical situation, you will be the Grantor, the Trustee, and the Beneficiary of your revocable living trust while you are alive. If you ever become incapacitated, your designated backup or successor trustee will step in to manage the trust’s accounts and property for your benefit. The terms of the trust that you create will specify how the trust’s accounts and property are to be used (for example, you can authorize the trustee to continue to make gifts to charities or pay tuition for your grandchildren).
3. Medical Power of Attorney. A medical power of attorney allows you to name a person (your agent) to make medical decisions on your behalf when a doctor determines that you are unable to make medical decisions for yourself. This may be a situation where you are under anesthesia or if you are suffering from a longer-lasting incapacity, such as being in a coma or some other non-responsive state. Your agent is tasked with making the medical choices you would have chosen for yourself. This is why is it important to communicate your wishes for ongoing treatment or if you would prefer to abstain from other treatments (for example: blood transfusions), even if refusing treatment might hasten end-of-life, and to select those who can respect and advocate for your medical wishes.
4. Advanced Directive or Living Will. An advance directive or living will shares your wishes regarding end-of-life care if you become incapacitated. Although a living will is not necessarily enforceable in all states, it can provide meaningful information about your desires—even if it is not strictly enforceable.
5. HIPAA Authorization. A Health Insurance Portability and Accountability Act authorization gives your doctor authority to disclose medical information to the people you name in the document. This is important because health privacy laws may make it very difficult for family members or loved ones to learn about your condition without this release. While this document does not give a person authority to make medical decisions, it can help alleviate tensions by keeping everyone on the same page concerning your condition.

Is Your Incapacity Plan Up to Date?

Once you create all of these legal documents for your incapacity plan, you cannot simply stick them in a drawer and forget about them. Instead, you must update and review your incapacity plan periodically and when major life events occur, such as moving to a new state or getting divorced. If you keep your incapacity plan up-to-date and make the documents available to your loved ones and trusted helpers, it should work the way you expect it to if needed. If you need to create or update your incapacity plan, please give us a call. Nielsen Law PLLC provides family-focused estate and business planning to individuals and families in Austin, Round Rock, Cedar Park, and the Central Texas area.  For more information, and to learn about our firm, please contact us. We look forward to working with you.