Aging is inescapable, and while many have tried to delay or avoid the inevitable, none have succeeded. It’s important, therefore, to plan accordingly for old age. While this may include a myriad of things, estate planning (specifically incapacity planning), is vital in making sure that your arrangements are in order.
Estate planning entails the decision-making process behind how an individual’s estate (assets, life insurance, pensions, real estate, etc.) will be managed, maintained, and allocated after death. This ensures that the estate of an individual falls into the right hands posthumously.
However, what about an individual who is still alive, but unable to specify or indicate what decisions they would prefer regarding their estate? That’s where incapacity planning comes into play. It’s a branch of estate planning that guarantees that a trusted third party will be able to make legal and medical choices on behalf of an individual in the event that he/she becomes incapacitated.
What Are Advance Directives?
This is made possible through advance directives, which are legal documents that identify which steps should be taken once an individual is rendered incapacitated. The third party is required to follow these rules and make the decisions specified in said individual’s advance directive.
The term advance directive can be used to refer to a number of estate planning tools. One of these tools is the durable power of attorney which means that an individual can appoint an agent, who is usually someone with the skills to both manage financial matters, to make legal decisions on his/her behalf. This is not a selection to be made lightly, as the agent will have a lot of authority in making said decisions.
It might be overwhelming to consider incapacity planning, as nobody wants to think about the day when their lives will no longer be in their own hands. Still, the risk one runs not putting these steps into place far outweighs the discomfort one may experience when making these decisions.
If a person doesn’t have any advance directives in place and has not appointed an agent to act on their behalf, a judge may appoint a guardian to take control of the incapacitated individual’s estate and make medical/legal decisions for them. The court can appoint anyone. The guardian doesn’t even need to be someone the individual knows.
Aside from powers of attorney, “advance directive” refers to a plethora of critical documents, one of them being the living will. The living will is a document that is meant to control future health care decisions only when a person becomes unable to competently make these decisions for himself. The living will specifies the type of medical treatment that a person would or would not want to receive in certain health situations. Further, the living will allows an individual to decide if they want certain medical decisions made such as whether or not they want food to be served to them in the event that they are deemed incompetent, whether you would want treatment for certain pains, and even “do not resuscitate orders,” which are instructions to not use CPR in the case that breathing or heartbeat should stop.
Seek Out A Professional
That’s how serious, and vital, incapacity planning truly is. Without these important documents, particularly the durable power of attorney or living will, your life’s work, your estate, your assets, and literally, your life could be in someone else’s hands. If you or a loved one are looking to get proper estate planning done, we highly recommend you seek out an experienced New York estate planning attorney who will help you draft an estate plan that suits your needs and your situation.