What Documents Do I Need to Plan for Incapacity

In addition to having a will, preparing documents that plan for your potential incapacity is vitally important.  These documents (often called living documents) ensure that you and your estate will be cared for in the event that you become incapacitated.

The following documents are prepared as part of any estate plan we prepare:

  •  Advance Directive or Living Will;
  •  Medical Power of Attorney for Healthcare; and
  •  Durable Financial Power of Attorney.

Each of these documents are discussed briefly below.

Advance Directive (Living Will) to Physicians

An advance directive is a legal document that a person uses to make known his or her wishes regarding life prolonging medical treatments. It can also be referred to as a living will, health care directive, or a physician’s directive.

An advance directive details the type of care you want if you become incapacitated and death is imminent. Typically addressed in an advance directive are the following types of treatments:

  •  Life-prolonging care – life-prolonging care includes CPR, blood transfusions, use of a respirator, surgery, dialysis, and other life-prolonging treatments
  •  Food and Hydration – food and hydration refer to a intravenous and tube feeding and hydration while a patient is permanently comatose or near death. Without the patients consent a doctor cannot withhold food and hydration.  
  •  Palliative Care (Comfort Care) – palliative care refers to a patient’s quality of life while dying naturally. Palliative care focuses on allowing the patient to pass as comfortable as possible.  

Each of the above addressed areas work together to effectuate the best possible plan for the worst possible scenarios. For example, if you desire to have forgo life-prolonging care as well as food and hydration but desire to have palliative care administered, your doctors will allow you to naturally pass as comfortable as possible.

Medical Power of Attorney

A medical power of attorney (also called a power of attorney for healthcare), appoints an agent, usually known as a Healthcare Agent, to make decisions for you when you are unable to do so for yourself. Whereas a living will address periods normally associated with the last moments of life, a medical power of attorney provides an agent to make healthcare decisions for you while you are incapacitated. A medical power of attorney goes beyond a living will since the agent usually has the power to:

  •  hire or fire medical personnel;
  •  consent or refuse to consent to medical treatments;
  •  gain access to medical records; and
  •  visit after visiting hours are over.

Most people do not think about who will make medical decisions for them in the event they become incapacitated and unable to speak for themselves.  Planning now will help you control how you are taken care of and help avoid any family disagreements regarding your medical care.

Financial Power of Attorney

A financial power of attorney – also known as a durable power of attorney – appoints an attorney-in-fact (agent) to care for your finances while you are incapacitated. If you ever become incapacitated this document, with exceptions, allows an agent appointed by to manage your finances and transact on your behalf. Although you can limit the power, the document is generally powerful. Typically the agent can do the following on your behalf:

  •  use your assets to pay expenses and support your family
  •  buy, sell, maintain, and encumber property
  •  collect government benefits
  •  file and pay your taxes
  •  buy, sell, and maintain insurance policies including annuities
  •  invest your money
  •  manage your retirement accounts
  •  transact with banks

It goes without saying that the agent you choose should be someone you trust a great deal. Also, this is a powerful document that should not to be mishandled. When we draft the document we take care in educating you about the power of this document and possible solutions to managing its power.

What if the bank or institution will not accept a power of attorney? In rare circumstances a bank, institution, or some other company will refuse to accept a duly executed power of attorney. Because a court cannot order the refusing institution to accept the document, we recommend simultaneously executing a Self Designation of Guardian. Through a Self Designation of Guardian you would appoint a guardian over your person and property. Generally, both the agent on the Financial Powers of Attorney and the guardian on the Self Designation of Guardian are the same individual. Once appointed as guardian, the institution must deal with them.


Simply put, planning for incapacity is a healthy choice. It is never too early to do so. Call us to schedule a free consultation.

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