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Incapacity Planning. Incapacity is an unexpected wrinkle in your estate plan. I am a planner. I make plans, I like making plans, and sometimes my plans go awry. Despite any prudent effort on my part, I cannot prepare for every contingency AND neither can you. Incapacity is an unexpected wrinkle in any estate plan.  A sudden illness, a workplace injury, a car accident, or even a chronic medical condition, can take you in a direction you didn’t plan for.  As a result, you will be forced to reevaluate your situation and set up a new plan for your future or the future of your loved ones.

According to the CDC (Centers for Disease Control and Prevention), there are approximately 1 in 4 adults in the United States with a disability of some type.[1]  Once you become incapacitated, where you are unable to manage your affairs, your life changes. It often changes in a way you didn’t anticipate and don’t like. Therefore taking affirmative action while you are competent is the prudent thing to do. Protect your money, property, and legacy while you can and make life easier for those charged with your care, if and when you become incapacitated. Here are a few steps you can take now:   


[1] Disability Impacts All of Us, Ctrs. for Disease Control & Prevention: Disability and Health Promotion (May 15, 2023), https://www.cdc.gov/ncbddd/disabilityandhealth/infographic-disability-impacts-all.html.

  • Work with a qualified estate planning attorney to ensure that you have taken the following actions:
    • Legally appointed someone to manage your affairs if you become unable to do so. Such affairs might include: manage property, pay bills, file taxes, and handle other financial and legal tasks.
    • Legally appointed someone to make healthcare decisions for you.
    • Share your wishes regarding your healthcare decisions such as end-of-life care and do-not-resuscitate instructions in a clear and legally valid way.
  • Work with a knowledgeable financial advisor to take the following additional actions:
    • Ensure that you have appropriate insurance coverage, which may include life, disability, long-term care.  Reassess your investment options and portfolio.
    • Review your budget, so that your bills are paid in the event of your incapacity.   
  • Understand the following difference:

Incapacity for legal or estate planning purposes is different from disability for other purposes, such as the determination of government benefits.

Disability for determining government benefits “possibly” means that a person cannot work anymore because of cancer or a workplace injury. Conversely, incapacity in an estate planning context typically means that a person is no longer capable of making sound decisions. Therefore, a person can be considered disabled without being considered incapacitated. Regardless, working with competent professionals will ensure that you and your family are fully protected if you become incapacitated.

  • Here are some specific actions you can take now:
    • Pay attention to where you want your money to go. Your estate planning attorney can help you assess whether your current plans are still realistic and, if not, what alternative options you have.
    • Maintain a healthy lifestyle. Visit your medical professionals on a regular basis and follow their instructions.
    • Get the help you need from trusted professionals. Now is the time to tap your network of friends and family for assistance with the heavy lifting. No single advisor will have all of the answers. But your team can work in concert to reduce the anxiety and uncertainty that come with a potential incapacity and keep you focused on what really matters.

Francine D. Ward
Attorney-At-Law, Author, Speaker

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