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What Is Incapacity Planning?


Incapacity planning comes in two main varieties. First, an individual might be planning for his or her own mental incapacity. There may come a time when you are unable to take care of your own affairs, when you need someone to pay your bills and consent to medical care, and there may even come a time when you must live in a nursing home, You should have a financial plan in place to assure that your money will last as long as possible in these circumstances.

Second, there is incapacity planning for your beneficiaries and heirs. It is possible that any or all of your family members or loved ones could become incapacitated in the future. Therefore in most situations, it is wise to place all of their gifts into irrevocable trusts that can be used to provide for the care of your loved ones without those funds being available to nursing homes, creditors and predators. All of your family members who drive or ride in cars are subject to having car accidents that could leave them or others badly injured. A good incapacity plan protects your loved ones whether they are responsible for the accident or whether they are badly injured in the accident. You can do this planning on their part well in advance without reducing their ability to enjoy the gift that you give them. I can help by creating an irrevocable trust, funded by your assets when you pass away or when you decide to make the asset transfer.

What Should An Incapacity Plan Include?

In doing an incapacity plan for your own needs, I recommend that you have a general durable power of attorney that allows a person of your choosing to take care of your financial affairs if and when you are no longer willing or no longer able to take care of them yourself. Next, I recommend that you have a medical power of attorney that gives someone else the authority to consent to medical care if and when the time comes that you are unable to make your own medical care decisions. I also urge you to complete an advanced directive for healthcare as this document controls what healthcare you will receive and what healthcare you will decline when you are near the end of your life or when you are in a persistent coma and are unaware of yourself and your surroundings. Additionally, I strongly encourage you to have a trust that appoints a trustee to help manage your affairs when you are no longer able to manage those affairs yourself. Lastly, I recommend that you have two different trusts. First, you should have a revocable trust that holds your day to day finances sufficient to meet your predictable daily needs. Second, you should have an irrevocable trust that holds the assets you want to protect to the greatest degree allowed by law; it is this type of trust that can help reduce your misery even if you are confined to long-term care.

Can I Choose More Than One Agent To Hold The Power Of Attorney?

It is possible to have more than one agent holding the power of attorney. Sometimes it is even strongly advisable, but there are occasional drawbacks. Here are some considerations when you are choosing how many people to appoint as your power of attorney. First, and most important, appoint only people whom you know that you can trust with your finances. Second, consider appointing a backup plan for each person that you appoint as your power of attorney. For example, you might appoint your brother William as your general power of attorney and make a provision in his appointment document that in the event he cannot serve, you nominate and appoint your sister Jane as your general power of attorney.

Sometimes, it is necessary or at least helpful to be even more elaborate. You may, for example, appoint two people and provide that either one may execute any document without the necessity of the other person signing that document. The appointment might look like this “I hereby appoint my brother William as my agent and power of attorney, I also appoint as his co-power of attorney my sister Jane and provide that either of them may alone execute any document or transfer that they find to be good and helpful for my benefit and care.” You could also appoint two people together as your power of attorney and require that both of them sign every document. For example, such an appointment might look like this. “I hereby appoint William and Jane as my co-power of attorney and agent. Both of them must sign any transfer, document, or contract on my behalf.”

For more information on Incapacity Planning In Oklahoma, a free initial consultation is your next best step. Get the information and legal answers you are seeking by calling (405) 754-4166 today.

Terrell Monks, Esq.

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