Consider Incapacitation in Your Estate Planning

By: John Whitbeck

[08.11.2020] When it comes to est­ate planning, most people are concerned with preparing documents that determine how their affairs and assets should be handled upon death. But, what if you become incapacitated?

Estate planning helps with providing for your family and sparing them the expense and frustration of drawn-out probate. You should also factor in what happens if you suddenly become seriously injured or ill, or are diagnosed with a debilitating condition like Alzheimer’s or dementia. You need a skilled Virginia estate planning attorney to ensure that all scenarios are covered, not just when you pass away.

Some documents that should be part of any estate plan include:

Healthcare Power of Attorney and HIPAA Authorization

Including a healthcare proxy, or healthcare power of attorney, is an important part of your estate plan, as this gives someone the authority to make medical decisions on your behalf.

You should consider having a HIPAA authorization prepared as well. HIPAA laws are stringent, and medical providers are bound by these privacy laws that protect the confidentiality of their patients’ records. Having a HIPAA authorization on file gives medical providers authorization to discuss medical issues with the person who holds the healthcare power of attorney.

Living Will

Living wills are not technically wills per se, but they provide details on how to handle decisions on life-sustaining treatments, like whether you want to be resuscitated, put on a respirator, given a feeding tube, etc. In Virginia, a living will is only valid if drafted by someone competent and signed in the presence of at least two witnesses. Other conditions must be met, as well. Virginia Code Section 54.1-2981 Health Care Decision Act covers all the requirements for living wills to be valid in Virginia.

Financial Power of Attorney

The attorney’s financial power gives someone the authority to pay bills and manage finances if you become incapacitated. This should include specifics on what financial powers you are granting and when it takes effect (immediate versus upon incapacitation).

Living Revocable Trust

A revocable trust, also called a living trust, is an integral part of the estate planning process. It may also play a role in situations involving incapacitation. Include a clause that discusses the use of funds to pay for medical expenses and help protect you while you’re still alive. The courts do not necessarily supervise revocable trusts, and that’s why it’s important to have a skilled attorney help prepare your estate plan. The benefit of a revocable trust is the ability to skip probate, saving both money and time. It also ensures more privacy for your family matters, since probates are public records.

Retaining an Estate Planning Virginia Lawyer

There are numerous benefits to having your estate plans in order, especially if you suddenly become incapacitated. Having powers of attorney in order and medical authorizations signed can make an emotionally difficult situation a little bit easier for your loved ones. You can never start the process too early, either. Estate planning is not just for middle-aged or older people, as young people can be involved in an accident that renders them incapacitated or worse, they succumb to their injuries. Let the attorneys at WhitbeckBennett take care of all your estate planning needs. Contact us by calling 800-516-3964 or email clientservices@wblaws.com.



Related: Wills and Trusts