Estate Planning — Do I Need A Separate Incapacity Plan?
Author: James A. Miller, Estate Planning Attorney / Category: Incapacity Planning / Posted: 06 Jan 2012If you are in the process of creating an estate plan, or already have one in place, you may also be considering the need for an incapacity plan. Incapacity can strike at any time and for any number of reasons, making the need for an incapacity plan equally as important as an estate plan. Although you do not need to make an entirely separate incapacity plan in most situations, you do need to discuss your desire to incorporate incapacity planning tools into your estate plan with your estate planning attorney.
The principal goal of an incapacity plan is to avoid a scenario where a family member or loved one is forced to petition a court in order to ascertain control over your finances or make healthcare decision on your behalf in the event of your incapacity. Absent pre-planning, that is precisely what is likely to happen.
Many estate planning tools can also be used as incapacity planning tools. Converting titles to real property or ownership of financial accounts, for instance, can serve the dual purpose of giving your loved one immediate access to the property or account upon your death and allowing them access in the event of your incapacity. A power of attorney can also be used in the event of your incapacity if it is a durable power of attorney. Trusts are also commonly used when creating an estate plan. A trust can often function as an incapacity planning tool as well by simply adding your incapacity as a triggering event which shifts control of the trust assets to the trustee.
The Law Offices of James A. Miller is a member of the American Academy of Estate Planning Attorneys.
Tags: Estate Planning, Incapacity Planning, Power of Attorney, trusts
