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The Heritage Law Center, LLC Blog

How to Plan for Incapacity

POSTED ON: September 28, 2020

Planning for your incapacity is an essential part of Massachusetts estate planning. 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. Incapacity can be short term (e.g., a bad medication causes you to go to the hospital and you are incoherent for a time), sudden (e.g., a car accident), or long term (e.g., Alzheimer’s).

Nobody wants to think that they could become incapacitated, but it’s important to put a plan in place to take care of yourself in case it does happen. You need to plan in advance to protect yourself and your assets. Things you can do:

Revocable (“Living”) Trust
A Massachusetts revocable trust holds title to property during lifetime. You need to transfer your assets into the trust for the trust to work for you. At your incapacity (or death), your successor trustee manages the assets according to your instructions in the trust.

Durable Power of Attorney
This allows a person you trust to manage your finances as well as business and legal matters in the event you become unable to do so yourself. That means they can take money out of your bank account, pay your bills, and even make court appearances for you until you recover and are able to handle your own affairs.

Health Care Proxy
Choose someone you trust to make medical decisions for you in case you become incapacitated. It allows your health care team and loved ones to know what kind of care you want.

Living Will
A Massachusestts living will works in conjunction with a health care proxy by expressing your wishes as to how your designated agent should proceed in specific circumstances. Do you want life-prolonging treatment if you have a terminal illness? Do you want respirators to help you breathe?

HIPAA (Health Insurance Portability and Accountability Act Authorization)
This document designates who can access your protected health information. Without such a 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.

Planning for the possibility of incapacity will give you the peace of mind that you and your assets will be well taken care if you should ever become incapacitated. As a Massachusetts estate planning law firm, we can help you create the necessary documents that would come into play to support you. Call us today at (617) 299-6976 or send an email to to schedule a confidential, no-cost consultation to discuss your incapacity planning.