Incapacity planning is a subject that should be discussed more often. Without a plan for incapacity, you allow the court to have a significant choice in who makes medical and financial decisions for you if you cannot speak for yourself. Discussing incapacity planning with a New Jersey elder law lawyer can help ensure you remain in control of these sensitive and personal decisions.
Three Tools That Can Be Very Beneficial for Incapacity Planning
- Revocable Living Trust
A Revocable Living Trust allows you to maintain control over the assets within the trust and modify the trust as you see fit should circumstances change. Living Trusts offer a variety of benefits such as avoiding probate, protecting property from creditors, and reducing or eliminating estate taxes. However, a Revocable Living Trust also offers one other important benefit — avoiding the appointment of a conservator for certain assets.
If you become incapacitated, the trust becomes an irrevocable trust managed by the successor trustee you named within the trust. The successor trustee continues to manage the property within the trust for your benefit. Upon your death, the successor trustee distributes the property to the beneficiaries you chose for the trust. Any property that you transfer to the trust will not become property of your probate estate. Another agent appointed by the court or through a power of attorney cannot take control of the assets unless that person is the same person you named as your successor trustee.
A Living Trust may also help you maintain eligibility for various government benefits that you might need if you require long-term nursing home or personal care. A New Jersey elder law attorney can help ensure the trust is drafted in a way that avoids eligibility issues. - Durable General Power of Attorney
A General Power of Attorney gives an agent the authority to make financial decisions for you. Your power of attorney can conduct various financial transactions including buying and selling real estate, investing money, opening financial accounts, selling stocks, filing or settling lawsuits, and paying bills.
The “durable” clause in a Durable Power of Attorney means that your incapacitation does not impact the powers granted to the agent within the document. In other words, the agent can continue to act on your behalf regarding financial matters even if you are in a coma. This benefit is important for incapacity planning because it avoids the need for a conservator to be appointed by the court to handle your financial matters. - Advance Directives and HIPAA Releases
If you cannot speak for yourself, you want a trusted person to have authority to direct doctors and other health care providers regarding medical and personal care decisions. You may also want to ensure your directions regarding life-sustaining and life-prolonging treatments are known and followed. Lastly, you also need to ensure that your family members or agents have access to your medical records and are authorized to discuss health care matters with your physicians.
Several incapacitation planning tools can help you accomplish these goals. If you are concerned about who will make medical and personal care decisions for you if you become incapacitated, you may want to discuss a Living Will, Health Care Power of Attorney, and a HIPAA Authorization with your attorney.
Call a New Jersey Elder Law Attorney for Additional Information
Incapacitation planning can be a difficult subject for many people. Schedule a consult with New Jersey elder law attorney, E.A. Goodman. A New Jersey elder law attorney can help you facilitate this discussion with a loved one and provide legal counsel and guidance regarding the documents you need in place should you, or a loved one become incapacitated.
Posted in: Elder Law
Information accurate as of the publication date of 2019