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Essential Incapacity Planning Documents

POSTED ON: March 2, 2021

elderly couple incapacity planning

Estate planning is far more than deciding who will get your assets when you pass on one day. Through smart estate planning, you can protect yourself in case you become incapacitated temporarily or permanently. Being “incapacitated” means that you no longer have the ability to understand and appreciate the consequences of your actions to make rational decisions. You can become incapacitated due to a mental health issue or a physical problem.

Essential incapacity planning can provide assurance that someone you trust will manage your financial matters and that person or someone you select will make medical decisions on your behalf if you can’t do so. A Massachusetts estate planning attorney can help set up your estate plan with these vital papers.

Power of Attorney for Financial Matters

A standard power of attorney becomes invalid when you die or become incapacitated, so you need to have a durable power of attorney for anything that you want someone to do for you if you become unable to act for yourself.

You can direct the person you designate as your agent to do anything that you normally have the legal right to do. These things can include items like:

  • Paying your bills so that your car doesn’t get repossessed, your house doesn’t go into foreclosure, and your credit score doesn’t get destroyed.
  • Managing your investments. You might miss out on a phenomenal investment opportunity or lose your shirt in a volatile market if no one watches over your investments during your time of incapacitation.
  • Choosing someone to run your business. Let’s say that you get a severe injury in a car crash, and the doctors put you into a medically induced coma for a week or two to prevent additional tissue damage. Without someone having the authority to manage your restaurant, store, or office while you recuperate, your company could suffer irreparable harm.

People typically think a durable power of attorney is for financial matters for long-term disability, so many healthy people think they don’t need one of these documents. The truth is that anyone could develop a long-term disability because of an accident, an acute illness, or a previously undiagnosed medical condition. A durable power of attorney could also be helpful if you experience a short-term disability and can’t make decisions for yourself. The pandemic taught us how vulnerable humans can be and how getting sick can upend a person’s life.

Power of Attorney for Health Care Decisions

This document also goes by the name of medical power of attorney or health care proxy. With a Massachusetts health care proxy, you designate someone to act on your behalf if you can’t do so, and you give them detailed instructions about what to do in specific situations. A living will works in conjunction with a health care proxy by expressing clear orders about what types of lifesaving or life-sustaining measures you refuse to let the medical personnel take. An example of this is a Do Not Resuscitate (DNR) Directive.

A HIPAA (Health Insurance Portability and Accountability Act Authorization) form designates who can access your protected health information. Without this document, a hospital or other provider might not be able to tell your loved ones any information about your care, or even that you are in their care.

It’s best to talk with your loved ones, so they know how you feel about life support, temporary medically-induced comas, tube feeding, and other procedures. 

Living Trust

You could create a living trust that includes multiple features of the financial and medical power of attorney documents. A Massachusetts revocable trust holds title to the property during a lifetime. At your incapacity (or death), your successor trustee manages the assets according to your instructions in the trust. The advantage of a living trust is that the trust can provide the funding to take care of you if you become incapacitated.

If you don’t have these essential incapacity planning documents, your family might have to spend thousands of dollars going to court to get an order from a judge that gives someone the authority to manage your financial matters and make your medical decisions if you can’t do so for yourself. The person the judge selects might be the last person you would want to make your choices.

A Massachusetts estate planning attorney can help safeguard you from that situation by drafting your essential incapacity estate planning documents. Contact our experienced Massachusetts incapacity attorney today at info@maheritagelawcenter.com or 617.299.6976 for a free initial consultation.