Incapacity Planning

Incapacity planning is a broad area of law that covers how you are cared for if you become physically or mentally unable to care for yourself. The type of care could range from simple tasks like buying groceries, paying bills, and handling financial matters to more important decisions such as selling real estate, gifting assets to your children, or making critical medical decisions.

Depending on the needs of the individual or family, incapacity planning could include a number of planning techniques such as Statutory Durable Power of Attorney, Medical Power of Attorney, Advanced Directive (Living Will), Appointment of  Guardian for Minor Children, and Appointment of Guardian in the Event Need Arises.

1. Guardians for minor children and other dependents

To help ensure that the needs of your minor children are taken care of in the event of your death, a legal guardian to care for them is appointed.  A guardian can be your spouse, a family member, or a trusted friend.

This is done in its own separate document and not done in the will.

There are two types of guardians that will need to be appointed: guardian of the person and guardian of the estate.

Guardian of the Estate:

If you leave assets outright to your minor children, then the guardian would manage these funds.  This person will be responsible for adhering to state guidelines on how your children’s money is spent and invested until the children reach the age of majority.  The guardian may have to submit annual accountings to the court to ensure that these funds are being properly managed for the benefit of your children.  If you name minor children as the beneficiaries of a trust, the trustee will carry out the terms of the trust and distribute the trust assets accordingly.

Guardian of the Person:

The guardian will have the responsibility for the day to day care of the minor children until they reach the age of majority.

Consider naming a guardian for children or other dependents who may be unable to care for themselves as adults to ensure they have the care and oversight they need indefinitely. Life insurance may help ensure they have the necessary funds for living expenses if they are unable to make a living for themselves.  For other aspects of their care, many options and combinations of options, up to full legal guardianship, are available to balance the individual’s autonomy and best interests. An attorney with experience in this area can help you make the best choices for your situation.

 2. Medical Power of Attorney

A medical power of attorney document allows you to give another individual legal authority to make health care decisions for you in the event you become incapacitated.  Only one agent should be appointed at a time.   Appoint someone you trust to act on your behalf to make health care decisions if you cannot do so. A medical power of attorney can be revoked at any time, even after you become incapacitated.

 3. Advanced Directive

An advance directive (living will) can allow you to state your wishes directly to your doctors in the event of a terminal illness or irreversible condition.

 4. Statutory Durable Power of Attorney

A power of attorney document gives another individual the authority to make legal decisions and take action on your behalf in accordance with the document. This person is known as the “attorney in fact” or “agent” and can be your spouse, partner, or anyone you trust. A power of attorney can apply to all your affairs, or be limited and apply only to particular assets or accounts you own.

A durable power of attorney means this arrangement will generally continue until your death, unless it is formally revoked; it remains in effect when you become incapacitated or are no longer able to make financial decisions on your own behalf. The durable power of attorney can take effect immediately or at the time of your incapacity, but must be established while you still have your mental faculties. You cannot create a durable power of attorney once you become incapacitated.

On the other hand, if you simply have a will without a statutory durable power of attorney, the court will appoint someone to oversee your financial affairs who will have to report to the court for approval of expenses, sales of property, etc.  This is done through a conservatorship.

These documents can be drafted by an estate planning attorney for a relatively low cost.  States do have specific requirements for these documents to be valid, and perhaps, more importantly, an attorney licensed in the state can tailor the documents so that it is in a form that is readily recognizable by medical and financial personnel.

Advanced Directive

“Artificially administered nutrition and hydration” means the provision of nutrients and/or fluids by a tube inserted in a vein, under the skin in the subcutaneous tissues, or in the gastrointestinal tract.

  • Irreversible Condition

“Irreversible condition” means a condition, injury, or illness:

  1.  that may be treated, but is never cured or eliminated;
  2. that leaves a person unable to care for or make decisions for the person’s own self; and
  3. that, without life-sustaining treatment provided in accordance with the prevailing standard of medical care, is fatal.


Many serious illnesses such as cancer, failure of major organs (kidney, heart, liver, or lung), and serious brain disease such as Alzheimer’s dementia may be considered irreversible early on.  There is no cure, but the patient may be kept alive for longer if the patient receives life-sustaining treatments.  Late in the course of the same illness, the disease may be considered terminal when, even with treatment, the patient is expected to die.  You may wish to consider which burdens of treatment you would be willing to accept in an effort to achieve a particular outcome.  This is a very personal decision that you may wish to discuss with your physician and family.

“Life-sustaining treatment” means treatment that, based on reasonable medical judgment, sustains the life of a patient and without which the patient will pass away.  The term includes both life-sustaining medications and artificial life support such as mechanical breathing machines, kidney dialysis treatment, and artificially administered nutrition and hydration.  Please note: the term does not include the administration of pain management medication, the performance of a medical procedure to provide comfort, or any other medical care provided to alleviate pain.

  •  Terminal Condition

“Terminal condition” means an incurable condition that according to reasonable medical judgment will cause death within six months, even with available life-sustaining treatment provided.


Many serious illnesses may be considered irreversible early in the course of the illness, but they may not be considered terminal until the disease is fairly advanced. You again may wish to consider the relative benefits and burdens of treatment and discuss your wishes with your physician and family.

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