Looking at the Law: Planning for Incapacity

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By Greg D. Crosslin

Planning for incapacity is an important aspect of Estate Planning. Estate Planning is more than just writing a Will or a Trust. Incapacity planning (IC) addresses what happens if you are unable to make medical decisions or handle your finances because of a medical condition. Although often overlooked, IC can be a very essential aspect of your planning. In Florida, your wishes regarding your medical treatment may be made known by executing a Healthcare Directive or Living Will. Healthcare Directives become effective as soon as you are unable to speak for yourself due to a terminal medical condition, unconsciousness or other medical condition as defined by Florida Statutes. These allow you to express what kinds of medical treatment should be withheld or provided, whether you want certain surgery or not, respirators or other life prolonging procedures to be taken for you.

Clearly, you have the option to change or revoke a Healthcare Directive at any time you want. In addition, because Healthcare Directives do not address every situation that might arise, you may also need a Healthcare Power of Attorney. This form of a power of attorney allows you to appoint an Agent to make healthcare decisions on your behalf, should you become unable to communicate your healthcare wishes yourself. Within a Healthcare Power of Attorney, you can designate that your Agent must make healthcare decisions according to what is stated in your Healthcare Directive. In the event your Healthcare Directive does not address a specific situation, you can direct your Agent to decide based upon the preference you have expressed to that person or based upon his or her own knowledge of your wishes.

In addition to making healthcare decisions on your behalf, a Healthcare Power of Attorney allows your Agent to be empowered to do things for you. These include things like having you admitted into and checked out of a hospital and/or other medical facilities. They can hire and fire medical staff responsible for your care, receive information concerning your care, review your medical records, talk with your medical team and provide information to your medical team about you and your care.

At the same time, if you become incapacitated, meeting your financial needs can be delegated to an Agent who you have designated through what is commonly referred to as a Durable Power of Attorney. Although you still maintain complete control over your matters, this document empowers your Agent to do things like pay your taxes, bills, manage your financial affairs (such as stocks, bank accounts, etc.) and to take care of other items on your behalf.

There are many levels of a Durable Power of Attorney and Florida recognizes Durable Powers of Attorney to allow your designated Agent to handle virtually all of the affairs you need handled. To ensure that nothing is overlooked in planning for the possibility of incapacity, we recommend that you consult an Estate Planning Attorney to ensure that the appropriate documents are in place to address your healthcare and financial affairs as necessary. Remember the old adage, failing to plan is planning to fail.

Greg D. Crosslin is Principal Attorney at the Law Office of Greg D. Crosslin, 3999 Commons Drive West, Suite D, in Destin, Fl. Call 850-650-7378 or visit www.destinlegal.com for more information.