Nobody likes to think about incapacity but it is something that everyone must deal with, as they age. This is simply a part of estate planning to give you peace of mind by knowing that you have done everything possible to aid and protect your family. By planning about incapacity in advance, an individual can remove the burden of having your family make difficult decisions for you when the time comes.
In order to avoid the costly legal proceeding to declare you incompetent to handle your financial affairs, you need to establish a plan and designate someone you trust to have the authority to do this for you. This durable power of attorney can be general or limited. A general durable power of attorney allows your agent, or attorney-in-fact, to conduct every act that you could legally do. A limited durable power of attorney covers a specific act, such as the sale of the property. Usually, the agent or attorney-in-fact is a family member, but it can be anyone you trust to handle your affairs, such as withdrawing money, paying bills, or managing investment accounts.
Having a will is no help for incapacitation, since it does not take effect until an individual dies, and it is widely recognized that less than 50% of individuals even have this basic succession planning tool when they die.
In addition to establishing a plan for someone to handle your financial affairs, you should plan for your health care. Wisconsin recognizes two types of advance directives. One is a health care power of attorney and the other is a living will. The health care power of attorney allows you to appoint a family member or some other person that you trust, to make decisions for you regarding your medical care. This person will then be authorized to make decisions about your medical treatment if you become unable to make an informed decision for yourself.
The other type of advance directive is a living will or a directive to physicians. This is a written instruction made while mentally competent to state what type of care you receive if you become incapacitated. Under Wisconsin law, an individual is incapacitated if they do not have the ability to receive and evaluate information effectively or to communicate decisions to such an extent that they are unable to manage their health care decisions.
A living will describe the nature of life-sustaining care that you desire if your condition is terminal or permanently unconscious and there is no hope for recovery.
There are many decisions to be made when planning for incapacity and creating an estate plan. In order to make well-informed decisions about how this can be done, you should discuss your situation with one of our experienced estate planning lawyers. Submit our online form to request a consultation.