The incapacity component is an important thing to address when you are planning your estate. Of course you want to prepare for things that will take place after you are gone, but unfortunately, many people go through a period of decline before they pass away.
We have all heard of Alzheimer’s disease, but it gets your attention when you find out how widespread it has become during our current era. The Alzheimer’s Association is a good source of information about the disease. According to their website, approximately four out of every 10 people who are at least 85 years of age have contracted Alzheimer’s disease.
This is a very significant percentage, and the oldest segment of the population is growing faster than any other. Once you reach the age of 67, it is likely that you will live to celebrate your 85th birthday.
Of course, Alzheimer’s is not the only cause of incapacitation, so we are talking about a very real possibility.
Adult Guardianship
Interested parties could petition the state to appoint a guardian to handle your affairs if you do nothing to prepare for incapacity. A guardianship proceeding could ultimately yield less than desirable results.
First of all, the state could potentially appoint someone that you never would have appointed yourself. Plus, everyone in your family may not be in concurrence with regard to the appropriate course of action. Disagreements can fracture the family unity during a difficult time for all.
Durable Power of Attorney
To address possible latter life incapacity, you could execute a document called a durable power of attorney. This type of power of attorney would remain in effect even if you become incapacitated.
You may be concerned about a loss of control if you create a durable power of attorney. If you want the document to go into effect immediately, the agent that you name would be able to act on your behalf even while you are of sound body and mind.
However, you do not have to inform the agent right away. You could have your attorney inform the agent at a future time when you do want the representative to be poised to act on your behalf.
You could also consider the creation of a springing durable power of attorney. This document would only go into effect if you were to become incapacitated at some point in time.
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Mark S. Eghrari, Estate Planning Attorney
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