One of the documents that is most necessary for incapacity planning is a Power of Attorney. The Power of Attorney appoints a trusted person of your choosing to make financial transactions on your behalf when you can’t. Often, people forget or neglect to put this document in place, and it’s often because people can’t imagine ever being unable to manage their financial affairs on a day-to-day basis. Many people have all their bills on autopay, or don’t have a lot of money in the bank, and that causes them to erroneously think their lives are too simple to require much incapacity planning.
If you don’t have a Power of Attorney in place and you become incapacitated, then you might find yourself in Probate Court. The Probate Court can establish a conservatorship over you. This means that you can lose your personal rights and an individual or a company of the court’s choosing will be allowed to make all financial transactions and decisions on your behalf. That could mean selling property that’s important to you. What’s more, the Probate Court will make sure that conservator gets paid for doing their duties, which—along with court fees—will come out of your personal bank account and estate.
Obviously, no one wants that. So instead, we can put a Power of Attorney in place to get you the help that you need without having your rights taken away in Probate Court.
Another necessary document for incapacity planning is a Healthcare Directive. This document allows for you to have a trusted person of your choosing make healthcare decisions on your behalf if you’re unable to do so. Very similarly to Powers of Attorney, many people neglect to put Healthcare Directives in place. There are many reasons why someone might fail to do so. Perhaps they don’t want anyone to have control over their healthcare decisions. Or perhaps people don’t do healthcare directives because they don’t think it’s imminent or don’t even know that such a document is necessary or exists in the first place.
If you don’t put a Healthcare Directive in place, the results can be similarly negative to what happens if you don’t have a Power of Attorney in place. Let’s say you have no Healthcare Directive and you become incapacitated and are unable to make healthcare decisions for yourself by meaningfully communicating with hospital staff, your care facility or home healthcare workers. In that case, Probate Court can establish a guardianship over you.
Firstly, a guardianship will give some person or agency of the Court’s choosing the right to make essential healthcare decisions for you. The implications of a guardianship can go very, very far. A guardian can make decisions about your mental health treatment, what medication you take, and even where you live. A guardianship deems you unfit, and in doing so, strips you of your liberties and your rights as an individual. That’s why guardianship should only be reserved for individuals who really, really need it.
Therefore, it is really important to give the people that you trust the ability and the power to step in and make these limited healthcare decisions on your behalf. Even more, a Healthcare Directive gives you the ability to control the situation even when you are not in active control or are without capacity because healthcare directives enable you to state your wishes in advance.
For these reasons, everyone needs a Power of Attorney and a Healthcare Directive for incapacity planning. In addition, if you are a parent, you should think about incapacity planning as it pertains to your children. If you become incapacitated, somebody might need to step in and take care of your kids for a limited period of time (or indefinitely, depending on how incapacitated you are).
For instance, it is one of my personal priorities in estate planning to know that if I become incapacitated, there is someone who will step in for my children. My estate planning gives me the peace of mind that my kids will always have somebody who can pick them up from school, sign off on their school forms with legal authority, engage with their daycare and make medical decisions on their behalf should they have a medical need while I can’t be there for them.
Therefore, if you have children, we also want to make sure that you are using documents that ensure a trusted guardian of your choosing is available and has authority in the event that you become incapacitated.
For more information on Planning For Potential Incapacity In Minnesota, an initial consultation is your next best step. Get the information and legal answers you are seeking by calling (952) 225-5902 today.
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