When it comes to estate planning, if you are like most people, you automatically think about taking legal steps to ensure the right people inherit your belongings when you’re gone. Although that thought is not wrong, it does leave out a very important aspect, planning for life. Planning for life is perhaps the most critical part of planning.
Planning that’s focused solely on who gets what when you’re gone is ignoring the fact that death isn’t the only thing you must prepare for. You need to consider that at some point before your eventual death, you may be incapacitated by accident or illness.
Whether we want to think about it or not, each of us could be faced with a devastating accident or disease that renders us incapable of caring for ourselves or our loved ones. But unlike death, which is by definition a final outcome, incapacity comes with an uncertain outcome and timeframe. This is why planning for incapacity is so important.
WHERE TO START
Planning for incapacity requires a different mindset and different tools than planning for death. The most important thing to remember is that you must choose someone and include your choice in legal documents. If you don’t legally name someone to make medical and financial decisions during your incapacity, the court will choose someone for you. If this happens, things can get extremely difficult for you and your loved ones.
The person a court chooses could be a family member you’d never want managing your affairs, or a professional guardian who charges exorbitant fees, and could even potentially decimate your estate. Either way, the choice of who will serve is out of your hands. As with most court proceedings, the process of naming a guardian is often time-consuming, costly, and emotionally draining for your family.
WHAT WON’T WORK
You need to keep in mind that one planning tool that’s totally worthless when it comes to your incapacity is a Will. A Will only goes into effect upon your death, and then it merely governs how your assets should be divided. So, having a Will does nothing to keep your family out of court and out of conflict in the event of your incapacity.
THE PROPER TOOLS FOR THE JOB
There are multiple planning vehicles to choose from when creating an incapacity plan. This shouldn’t be just a single document. Though the planning strategies you ultimately put in place will be based on your particular circumstances, it’s likely that your incapacity plan will include some, or all, of the following:
Health Care Proxy: An advanced directive that grants an individual of your choice the immediate legal authority to make decisions about your medical treatment in the event of your incapacity.
Living Will: An advanced directive that provides specific guidance about how your medical decisions should be made during your incapacity.
Durable financial power of attorney: A planning document that grants an individual of your choice the immediate legal authority to make decisions related to the management of your finances, real estate, and business interests.
Revocable living trust: A planning document that immediately transfers control of all assets held by the Trust to a person of your choosing to be used for your benefit in the event of your incapacity. The trust can include legally binding instructions for how your care should be managed and even spell out specific conditions that must be met for you to be deemed incapacitated.
Monet Binder, Esq., has her practice in Queens, dedicated to protecting families, their legacies, and values. All halachic documents are approved by the Bais Havaad Halacha Center in Lakewood, under the direction of Rabbi Dovid Grossman and the guidance of Harav Shmuel Kaminetsky, shlita, as well as other leading halachic authorities. To learn more about how a power of attorney can help you, you can send her an email at This email address is being protected from spambots. You need JavaScript enabled to view it. or call 718-514-7575.
