Planning For Incapacity

incapacityWhen most individuals think of “estate planning,” their mind immediately turns to documents addressing the death of a person. This belief, however, captures only part of estate planning’s purpose. One of the most significant aspects of estate planning is planning for the incapacitation of an individual. Everyone should have a legal document detailing their wishes in the event of incapacity. While this reality is difficult for many young people to face, it is important as we face the reality of a pandemic. Studies show that one in four of today’s 20-year-olds can expect to be out of work for at least a year because of a disabling condition before they reach the normal retirement age. [1] For all these reasons, it is important to know the options available for planning an estate and for dealing with potential incapacity.

When planning for incapacity, it is important to ensure a plan addresses two central concerns: the management of an individual’s financial affairs and providing for the physical care of an individual.    The documents below represent a few of the options available to an individual planning for incapacity.

Conservatorship and Guardianship

A conservatorship and guardianship are used when an individual selects a person to care for them or their affairs in the event of incapacitation. In the state of Illinois, a conservator is considered the keeper of an individual’s financial affairs. This person has the responsibility of managing all aspects of the individual’s finances, including paying bills and managing other assets. Conservators are required to submit regular reports to the court detailing the status of the individual’s finances. A guardian is responsible for caring for the individual. A guardian is empowered to make day-to-day decisions for the individual and is responsible for their well-being. Guardians typically make decisions concerning housing, education, and healthcare.  If an individual does not have a guardian or conservator selected prior to incapacitation, it can lead to a lengthy judicial investigation regarding who would be the best person to fulfill these obligations.

General Durable Power of Attorney

A general durable power of attorney allows an individual to select a person able to act as a representative for them in the management of their affairs.  A general durable power of attorney can be drafted in two ways: it can immediately grant the selected individual all the authority contained in the document, or it can be a “springing” grant of authority, meaning the person is not empowered to act on the individual’s behalf unless that individual has been deemed incapacitated.  In each situation, if the individual is able to act for themselves, they are able to do so. When selecting a person to act as your power of attorney, it is critical to select a person who has your best interest in mind. The powers granted to a general durable power of attorney are specific to each document but often include transacting on the individual’s behalf, maintaining bills, and accessing bank accounts.

Medical Durable Power of Attorney & Living Wills

Thus far, most of the options discussed have pertained to an individual empowering another in regard to their assets. Medical durable power of attorneys and living wills address an individual’s concerns and desires with respect to healthcare decisions. When an individual selects a medical durable power of attorney, that person is empowered to address and make decisions regarding an individual’s healthcare when they are incapacitated. Additionally, a living will details an individual’s wishes and specifications of when long term care should be terminated and allows an individual to specify in advance how they desire incapacity be addressed.

These are just a few of the options available to you to address the possibility of incapacitation. Incapacity is difficult for both the individual suffering and their surrounding family. By having a plan in place, an affected individual and their family can avoid additional stress.

If you have questions about your options for planning for incapacity, or any other estate planning concerns, contact Sherer Law Offices at (618) 692-6656 for more information.

The information provided on this site is not, nor is it intended to be, legal advice.  You should consult with an attorney for advice regarding your individual situation. We invite you to contact us and welcome your calls, emails, and communications. Contacting our offices does not create an attorney-client relationship.  Please do not send any confidential information to us unless and until such time as an attorney-client relationship has been established.

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[1] https://disabilitycanhappen.org/disability-statistic/

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