Beyond the Will – Estate Planning for Incapacity

(Last Updated On: March 19, 2018)

When most people think of estate planning, they think of wills and trusts. Those are both important aspects of your estate plan but they are not the only pieces to the puzzle. Included in every estate plan I prepare is a medical power of attorney, financial power of attorney, and a living will (formally known as an advanced directive for medical or surgical treatment). Sometimes, these documents become more important than the will or the trust. In this post, we will cover estate planning for incapacity through the use of these 3 documents.

The Living Will

The living will comes into play when your attending physician and a second physician determine either that you have a terminal condition and cannot make decisions on your own behalf or when they determine that you are in a persistent vegetative state. To prepare this document, you want to consider the types of medical care you want under these different circumstances.

If you have a terminal condition or are in a persistent vegetative state, do you want your doctor to prolong the dying process through medical procedures or through artificial hydration or nutrition? Do you want your doctor to continue this treatment indefinitely? Or for a specified period of time to allow your loved ones to gather and say their goodbyes? Or do you not want these procedures administered at all?

Do you have any other specific directions you would like your doctors to follow? Do you have religious beliefs that you need your doctor to know about ahead of time? Are there certain people who you want to be able to talk to your doctor about your medical care? Do you want to be an organ or tissue donor?

Medical Power of Attorney

Your medical POA can be a standing power or can only be triggered by your incapacity. This document names the person you want to stand in your shoes to make medical decisions on your behalf. They can talk with your doctor about your medical care and treatment. They will use your living will as a guide when making these decisions. You can choose to allow this person to override your living will in uncertain situations. This person will also communicate with your financial power of attorney to ensure medical bills are paid.

Financial Power of Attorney

Your financial POA can also be a standing power or be triggered by your incapacity. This documents names the person you want to stand in your shoes to make financial decisions on your behalf. They will have full access to your finances as though they were dealing with their own finances. They will have access to your bank accounts and your bills. The expectation is that they will act in your best interest. They will pay the bills that need to be paid and they will only use your money on you.

Your Homework

These documents can sometimes be overlooked. But my hope is that after reading this, you will recognize that there is a lot to consider beyond who gets what when you die. These are important decisions that affect your financial, emotional, and physical well-being during life. Your homework is to spend some time talking to your loved ones and sitting with these questions. It is important that you are comfortable with your decisions and that your estate plan fully reflects them.