Incapacity Planning
Attorney in Charleston, South Carolina
The Incapacity Planning Process involves looking at what you need and want to happen should you be unable to make your own financial, health care, or end-of-life decisions. Your instructions for how you want your affairs to be handled are set forth in the following types of documents.
Power of Attorney
A Power of Attorney is a legal document that allows you to choose an agent to make financial decisions and manage your assets. Your agent should be someone you trust to act on your behalf and who will follow your wishes. Your Power of Attorney gives your agent certain powers. Your agent is also called an “attorney-in-fact”. Anything your agent does in good faith on your behalf is legally binding on you.
The powers you give to your agent under a Power of Attorney (“POA”) can be broad or specific. A POA can be limited to a single transaction such as signing closing documents on the sale of a home or limited to handling your finances while you are out of the country. A Power of Attorney can be effective as soon as you sign or it can spring into effect only when you become incapacitated.
General Durable Power of Attorney
Powers of Attorney that are not durable are revoked if you become incapacitated. A Durable POA allows someone to manage your finances and assets for you even if you become incapacitated. If a person becomes incapacitated during their lifetime, a Durable POA prevents the need to petition the probate court for guardianship and/or conservatorship for the incapacitated individual. A Durable POA is an important document to have so your agent can pay your bills and manage your property while you are unable to do so.
Selecting an agent you trust to act on your behalf during your time of need is very important. You may want to name two agents to serve together. Additionally, you will need to select a successor agent in case the agent you initially choose cannot or will not serve as your agent.
A Durable POA is an important part of planning for incapacity. It goes hand-in-hand with a Health Care Power of Attorney and a Living Will. A Durable POA is effective during your lifetime. After your death, management of your estate and distribution of your assets is made in accordance with your will or trust.
Health Care Power of Attorney
A Health Care Power of Attorney is a type of advance directive. It is a legal document that you sign in advance that directs your medical care when you are unable to make your own healthcare decisions.
Under a Health Care Power of Attorney, you select an agent who has the power to make health care decisions for you. It is important to choose an agent who you trust to advocate for your best interests. Your agent should also be tough enough to stand up to medical personnel and family who have different ideas about what medical care you should receive. Additionally, you can choose a successor agent who will act on your behalf if and when your agent cannot or will not act.
Under a Health Care Power of Attorney, your agent is given certain powers to direct your medical care. Your agent can access your medical records and discuss your medical condition and care with your doctors. Without a Health Care Power of Attorney, access to your medical records or conversations with your doctors can be limited by privacy laws.
Health Care Powers of Attorney complement living wills as they address different aspects of medical care.
Living Wills
Death is a natural part of life. For many of us, it is difficult to think and talk about death much less plan for it. But planning for end-of-life medical care can ease the burden on your family members and loved ones who would be forced to make emotionally difficult decisions without fully knowing your wishes. Making those decisions in advance gives you the freedom to decide how you spend your final days on this Earth. It also gives your loved ones a measure of peace knowing that they carried out your dying wishes.
A living will is a type of advanced health care directive. Living wills provide instructions for end-of-life health care when you are unable to speak for yourself. In South Carolina, living wills are called a “Declaration of a Desire for a Natural Death.”
A living will directs whether your physician will provide nutrition and hydration if you (1) have a terminal condition or (2) are in a permanent state of unconsciousness. You have a terminal condition if the doctor who takes care of you and another doctor agree that your death could occur within a reasonably short period of time if life-sustaining procedures are not used. You are in a permanent state of unconsciousness when your brain permanently stops working.
A living will allows you to name an agent who will carry out your dying wishes. It is important to choose an agent who you trust to enforce your end-of-life care decisions and will not be conflicted by their own moral or philosophical beliefs. Your agent should also be tough enough to stand up to medical personnel and family who do not want to carry out your wishes.
Living wills differ from Health Care Powers of Attorney because living wills specifically address the dying process. A Health Care Power of Attorney is broader and directs your medical care while you are incapacitated or unable to speak for yourself. These documents work together to direct your medical care and it is important to have both.
Trusts
A trust is a legal document that appoints someone to manage property owned by the trust for your benefit or the benefit of another person (spouse, life partner, child, grandchild), a specific piece of property (vacation home), or a charity. Trusts can be revocable or irrevocable. Revocable trusts or “living trusts” allow you to revoke or change your trust at any time prior to your death or incapacity. Under a revocable trust, you retain the power to manage your assets until you become incapacitated. Once you become incapacitated, the trustee steps in and manages the trust property according to your trust agreement.
Trust agreements often contain instructions about how property owned by the trust is to be used for you and your beneficiaries during your life if you should become incapacitated. Trusts can be established for disabled spouses or children with special needs. Trusts can also be established to ensure that a beneficiary who is receiving government benefits is not disqualified from those much-needed benefits.
A trust-based estate plan will include all of the incapacity planning documents as well as additional trust-related documents.