Properly planning for incapacity requires specific estate planning strategies

Most estate plans focus on what happens after you die. But without arrangements for what will happen in the event you become mentally or physically incapacitated, your plan is incomplete. If an accident, illness or other circumstances render you unable to make financial or health care decisions — and you don’t have documents in place to specify how these decisions will be made, and by whom — a court-appointed guardian and/or conservator (the term Georgia uses for a financial guardian now) will have to act on your behalf.

Choosing the right tools

There are several tools you can use to ensure that a person you choose handles your affairs in the event you cannot:

Revocable trust. Sometimes called a “living trust,” it’s designed to hold all or most of your assets. As trustee, you retain control over the assets, but in the event you become incapacitated, your designee takes over. This designee is called a “successor trustee”.

Durable power of attorney. This authorizes a designee (called an “agent”) to manage your property and finances, subject to limitations you establish.

Advance Directive for Health Care.  (Prior to 2007, Georgia had two separate documents for health care: a Living Will and Health Care Power of Attorney.  These are now combined into one document called the Advance Directive for Health Care).  It expresses your preferences regarding life-sustaining medical treatment in the event you’re unable to communicate your wishes, and it authorizes your designee (again called an “agent”) to make medical decisions for you in the event you can’t make or communicate them yourself.  This document generally also includes a  HIPAA authorization allowing health providers to release medical information to your designee/agent.  “HIPAA” refers to the Health Insurance Portability and Accountability Act of 1996.

We believe that virtually anyone over the age of 18 in Georgia should have–at the very least–a Power of Attorney and Advance Directive for Health Care.  Parents generally cannot act for their children once they have attained the age of 18 years in Georgia.

For these tools to be effective, you must plan ahead. If you wait until they’re needed, you may lack the requisite capacity to execute them. Also, be sure to check the law in your state. In some states, certain planning tools aren’t permitted, or go by different names. We can help you address incapacity in your estate plan here in Georgia.

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