When you think about estate planning, the events that will take place after you pass away are naturally going to come to mind first. Without question, it is important to take the proper steps to make sure that your assets get into the hands of your loved ones in the best possible way. That being said, you should also consider end of life matters such as possible guardianship and prepare for them in advance.
Incapacity Is Common
This is a subject that no one is especially anxious to address, but the cold hard truth is that a significant percentage of elders become unable to manage their affairs at some point in time. Once you reach the age of 67, it becomes likely that you will live into your mid-80s. About 40% of people that are 85 years of age and older have Alzheimer’s disease, and this is not the only cause of incapacity.
If you do nothing to prepare for this eventuality, your family may have to petition the state to appoint a guardian to make decisions on your behalf. This is a necessary remedy, but there are some potential drawbacks. For one, it can be time-consuming, and family members may not agree on the correct course of action.
Ultimately, a person you would have not have chosen yourself may be named by the court to serve as your guardian.
Advance Planning to Avoid Guardianship
It is possible to proactively plan for possible incapacity to avoid the pitfalls that go along with a guardianship proceeding. A non-durable power of attorney is a document that can be used to give someone else the power to act on your behalf in a legally binding manner, but this type of power of attorney would no longer be in effect if you were to become incapacitated.
A durable power of attorney, though, it would remain active if you are no longer capable of making sound decisions on your own. This is the document that is often used for incapacity planning purposes. Powers of attorney are presumed to be durable in North Carolina, but this is not true in ever state so the document should still say it is durable even if you are a North Carolina resident.
You could execute a durable power of attorney for property to make financial decisions for you if it becomes necessary. For health care decision-making, you could add another durable power of attorney. The same person could act as the agent for each respective purpose, but this is not necessary.
A living will is another document that should be executed when you are including an incapacity planning component within your broader estate plan. This document is used to state your preferences with regard to the use of life-sustaining measures if you are ever in a terminal condition.
The Health Insurance Portability and Accountability Act of 1996 prevents health care providers from sharing information with anyone other than the patient. To make sure that your medical decision maker can access your records, you would want to include a HIPAA release form.
We should point out that an agent that is named in a durable power of attorney would normally have decision-making authority as soon as you execute the document. This can be somewhat disconcerting, and if you have any trepidation, you could consider the using a springing durable power of attorney instead. It would only go into effect if you were to become incapacitated at some point in time.
Attend a Free Seminar
Our Charlotte estate planning attorney hosts seminars that are chock-full of some extremely important and eye-opening information so we strongly urge you to attend the session that fits into your schedule.
Though we do not charge anything for our seminars, we do ask that you register in advance so that we can reserve your seat, because space is limited. You can do just that if you visit our seminar schedule page and click on the date that works for you.
Schedule a Consultation Today!
We are here to help if you would like to take direct action and discuss your legacy goals with a Charlotte estate planning attorney. You can send us a message to request a consultation appointment, and we can be reached by phone at 704-944-3245 (Charlotte, NC and Huntersville, NC), or for individuals in Kentucky, at (606) 324-5516 (Ashland, KY) or (859) 372-6655 (Florence, KY).
John’s practice focuses on the use of Wills and Living Trusts in Estate Planning to help individuals protect their families and preserve their legacies after their deaths, but his practice also focuses on the critical issues of protecting individuals with dementia or other diminished capacity, assisting individuals in qualifying for Medicaid and other government benefits to offset the costs of long-term care, and providing special needs planning.
John is admitted to practice law in North Carolina, South Carolina, Kentucky, and Ohio, and he is accredited by the Department of Veterans Affairs.
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