A comprehensive estate plan should accomplish a variety of goals above and beyond the primary goal of deciding what will happen to your estate assets when you die. Although each estate plan is as unique as the individual who creates the plan, there are some additional goals that are commonly found in a well drafted estate plan, including incapacity planning. You may be wondering if you need an incapacity plan. The simple answer to that is that everyone should have an incapacity plan.
When you hear the word “incapacity” you may immediately envision an elderly individual suffering from Alzheimer’s or another old age related dementia disease. While Alzheimer’s will certainly eventually lead to incapacity, there are a virtually endless number of other circumstances that could render you incapacitated tomorrow, such as a debilitating illness, workplace accident, or catastrophic personal injury. Statistically speaking, you stand a one in five chance of suffering a period of incapacity before you reach retirement age. At retirement age, those odds increase to almost one in two and by age 85 to three out of four.
Imagine, for a moment, what would happen if you were to become incapacitated tomorrow. Who would take care of your home, your financial accounts, and any other assets you own? Who would make personal decision for you such as what medical treatment to approve or refuse and where you will live during your incapacity? Of equal importance, do any of the people you would appoint have the legal authority to make the decisions or take control? Unless you already have an incapacity plan in place the answer to that question is likely “no.” In that case, a court will likely need to decide who to appoint to take control of your assets and make medical decisions for you. Not only will that potentially become costly and time consuming, but it could drive a wedge into your family and loved ones if more than one individual petitions to be appointed to the same position.
The simple way to avoid the time, cost, conflict, and uncertainty is to include incapacity planning in your overall estate plan. Most incapacity plans include Advance Directives along with provisions for a shift in control of estate assets. An advance directive will allow you to appoint someone to make healthcare related decisions for you should you be unable to make them. You may also decide to create a revocable living trust and appoint yourself as the trustee and your chosen successor as your successor trustee. Important assets are then transferred into the trust. If you become incapacitated, your successor trustee steps in and takes over automatically.
If you have additional questions or concerns about incapacity planning or estate planning in general, contact the experienced New York estate planning attorneys at The Law Offices of Kobrick & Moccia by calling 800-295-1917 to schedule your appointment.