PLANNING FOR INCAPACITY
There may come a point in your life where you are no longer able to take care of your own affairs. It is one of those tough realities of life that no one ever wants to consider. The circumstances of incapacity can be unpredictable. If you do not take the proper precautions, incapacity can become a burden on those around you. Though you can never fully predict the possible ramifications of incapacity, there are many things you can do to be as prepared as possible.
If you become incapacitated without any planning or preparation of these documents, someone will still have to be named to take care of your financial and medical decisions, at which point a court proceeding called a guardianship will be necessary. This type of proceeding requires a lawyer, can be very time consuming, and very costly. Other concerns include that family members will fight over who should be your guardian, a guardian could be restricted in acting on your behalf, or the court could get involved in making decisions about your life.
The first way to be prepared for incapacity is to make sure that you have an up-to-date and properly executed Durable Power of Attorney. A Durable Power of Attorney is a document that allows you to name someone to handle your finances if you are unable to do so. That person can pay your bills, manage your investments, or make key financial decisions that are in your best interests. They would also be able to help you become enrolled in any government aid you are eligible for, including but not limited to, the Medicaid Program. As of October, 2011, the Durable Power of Attorney statute in Florida (Chapter 709, Florida Statutes) has been changed and updated. If your document was executed before then, you should have it reviewed and most likely updated.
Additionally, if you have a Revocable Living Trust, you should make sure that it includes an incapacity clause or provision. A Revocable Living Trust is set up so at death your assets don't go through probate, but a Revocable Living Trust can also guard against incapacity. The Trust allows your appointed representative to step in and control those assets if you are unable to do so. This person is called a Successor Trustee. The Successor Trustee would not be able to do so without proof of your incapacity. This proof is typically a letter from your doctor, but it can be a court order declaring your incapacity as well. This provides protection for you in that no one can step in and control your assets without showing that it is a necessity.
A Health Care Surrogate document is also important in planning for incapacity. This type of document allows your to nominate someone to make medical decisions on your behalf and in your best interest if you are no longer able to make those decisions. This is also sometimes known as a Medical Power of Attorney. Having a properly executed Health Care Surrogate allows you to make sure that the person(s) you want to be making medical decisions on your behalf, can.
A Declaration Under Florida Life Prolonging Procedure Act, more commonly known as a "Living Will", is another document you should have in preparation of incapacity. It is a statement of your wishes for what life prolonging procedures you want, or don't want, in the event that your become terminally ill and unable to communicate. It is commonly asked for by doctors offices and hospitals when providing treatment, even if it is not normally a life threatening procedure itself.
Incapacity is a scary reality, however it is important not to wait to prepare for it. Many people do not prepare for incapacity until it is too late. Proper planning can make sure that your continued care and well-being is provided for both medically and financially.