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Planning for Incapacity: A Legal Toolbox

March 31, 2023

Many people think (incorrectly) that estate planning and crisis planning only concern end-of-life decisions and what happens to your possessions when you die. In reality, they encompass much more than that. There are several estate planning tools that can prove invaluable during your life, particularly in the event that you become incapacitated and can no longer make major decisions for yourself. Without the proper legal tools in your incapacity toolbox, you may have no choice but to entrust major legal, financial, and life-and-death medical decisions to someone else — potentially even a stranger. A Springfield power of attorney counsel can help you ensure that your wishes are followed in the event of your incapacitation. 

What Is Incapacity? 

Incapacitation generally occurs when a medical condition prevents a person from being able to care for themselves or make informed decisions about financial, legal, and medical matters. Missouri law defines an incapacitated person as 

…one who is unable by reason of any physical, mental, or cognitive condition to receive and evaluate information or to communicate decisions to such an extent that the person, even with appropriate services and assistive technology, lacks capacity to manage the person’s essential requirements for food, clothing, shelter, safety or other care such that serious physical injury, illness, or disease is likely to occur.

Examples of incapacity include situations where a person suffers from dementia or Alzheimer’s, is in a coma, or is under anesthesia during a surgical procedure.  

Why You Need to Plan for Incapacity Now

Even if you are young and healthy, you need to start planning for potential incapacity now. Most importantly, the need to make end-of-life decisions could come sooner than you think — you may not be elderly at the end of your life. Death is also not the only situation that requires crisis planning. You could become incapacitated at any time and potentially live for decades in that state, all while being unable to manage your own affairs and make your own legal and medical decisions. If that sounds unappealing to you, a Springfield power of attorney counsel can help you ensure that your family and medical team are legally obligated to follow your instructions in a worst-case scenario. 

Tools You Need in Your Incapacity Legal Toolbox 

There are several estate planning tools that can be used to address incapacity as well as end-of-life decision-making. They may be used either individually or in combination. Below are three of the most effective of those tools. 

Advance Directive 

A healthcare advance directive is a document containing instructions to your medical staff that outlines the medical procedures you either want or do not want to be undertaken in the event that you are unable to communicate such preferences (i.e., you are incapacitated). While an advance directive provides specific instructions for your medical team, it also relieves your family of the burden of having to guess what your wishes are. You are not required to select an agent to make decisions for you as part of a healthcare advanced directive. 

A typical healthcare advance directive states that if you are incapacitated and your medical team determines that you have no reasonable expectation of recovery, you do or do not want the following treatments to be used to prolong your life: 

  • Artificially supplied nutrition and hydration 
  • Surgery or other invasive procedures
  • Antibiotics 
  • Mechanical ventilator 
  • Radiation therapy 
  • Hear-lung resuscitation
  • Dialysis
  • Chemotherapy 
  • Other “life-prolonging” procedures merely intended to keep you alive without reasonable hope of improvement of your condition
  • Any other procedures you specify 

Note that these instructions generally apply only in cases where your medical team has determined that you have no hope of improvement — if your medical team thinks that any of the above treatments may lead to your recovery, they are authorized to try them. 

Durable Power of Attorney 

Granting a person power of attorney enables them to make decisions on your behalf with the same legal authority as if you were making the decisions yourself. As such, they are a very effective tool for managing your affairs should you become incapacitated. However, standard power of attorney ends upon the principal’s incapacitation; you can extend that power of attorney by making your grant of power of attorney “durable.”

Attorneys in fact may make a broad range of decisions on behalf of the principal. The exact powers granted to attorneys in fact vary from case to case, but an attorney in fact may be authorized to do the following (and more): 

  • Execute, amend, or revoke a trust instrument
  • Fund a trust with the principal’s assets
  • Nominate a guardian or conservator for the principal 
  • Create or change survivorship interests in the principal’s property 
  • Designate or change the principal’s beneficiaries 
  • Consent or prohibit any type of health care, medical care, treatment, or procedure

Power of attorney may be granted immediately upon the execution of the power of attorney instrument or only upon the principal’s incapacitation.

Revocable Living Trusts 

Revocable living trusts are trusts established during the settlor’s lifetime and which may be modified or revoked by the settlor during his or her lifetime. The settlor may also be the trustee and beneficiary. Living trusts can be useful for incapacity planning because the settlor may appoint a successor trustee who will then take over management of the trust in the event the settlor/trustee becomes incapacitated. While successor trustees have many of the same powers as attorneys in fact under a durable power of attorney, their authority is limited to the trust and the assets therein. A major advantage of removable living trusts is that most of them become irrevocable upon the settlor’s death, thereby avoiding probate.  

Get Individual Advice From a Springfield Power of Attorney Counsel 

There is no “one size fits all” approach to estate planning and crisis planning. All such plans must be tailored to the individual and designed to meet the individual’s goals. For individual advice about assembling your incapacity legal toolkit, please contact a Springfield power of attorney counsel at LifeGen Law Group by calling 417-823-9898 or using our online contact form.