By Jan Alcide

Incapacity is unpredictable and often cannot be anticipated. A drunk person does not have capacity while drunk but will regain capacity, albeit with a nasty hangover, in the morning. In the world of trusts and estates, we plan for moments of sudden or unexpected incapacity, such as a person being on life-support following illness or a terrible accident as well as the incapacity that can nebulously creep up onto someone. Many of us have watched the mental decline of a family member or a close friend. Uncertainty abounds as to whether this person has everyday forgetfulness or is showing signs of something more sinister, the beginning decline of his/her mental health.

Diagnoses aren’t exact science and can come when capacity is gone, at which point, it is too late to be proactive. Of course, families still have options; conservatorships for example, but none as attractive as a well thought out plan that your family can follow.

Below are 5 tips to help make things a little easier.

  1. Make Your Medical Wishes Known. Have the conversation with your friends and family; decide how you want your care to proceed such as “removal from life-support,” “doing everything medically necessary” or “designating you as DNR”. Appoint the right agent to execute your wishes. And remember, when it comes to healthcare decisions, the power is in the writing, so get a properly executed Advance Health Care Directive.
  2. Ensure That Your Financial “House” Can Continue to Run. You currently manage all the money coming in and going out of your home. Think about it; meetings with your financial advisor, getting your taxes filed, paying your grandchildren’s college tuition, or making your annual charitable gifts. You want this to continue and unless your savings account is stuffed beneath your mattress, your agent needs to have access to your accounts so that these financial obligations can continue to be met.
  3. Get an Estate Plan and If You Already Have One, Have It Reviewed and Make Any Necessary Amendments. A properly executed estate plan can serve a variety of purposes. It can keep an estate out of probate, provide a successor to manage your affairs and ensure that your heirs are cared for in the manner you choose.
  4. When It Comes to Organ Donations-Make A Decision. Donation choices are legally binding and cannot be overturned by anyone else, not even your family.
  5. Leave Instructions for Your Personal Care. How you want to be treated or cared for is important. Also important is where you want to live as you enter the last stages of your life.

No one knows you better than yourself, not even your spouse. And unfortunately for most, the conversations held at the breakfast table or whispered in bed do not hold weight against competing ideas when you can no longer speak for yourself. When your loved ones cannot agree or when access is barred to your financial resources, a third party, often the court, steps in as the final arbiter. Documenting your wishes not only helps to avoid conflict between family members, it also empowers your decision maker with the necessary tools to execute those wishes but also the confidence that he/she is making your right decision.

Jan Alcide is the proprietor at the Law Office of Jan A. Meyer, a boutique estate planning practice. Her planning philosophy is to help people protect that which matters most to them, their families. She can be reached at 949.607.9412.  

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