A comprehensive estate plan should address contingencies that you may be confronted with while you are alive. One of these is the possibility of becoming incapacitated and unable to handle your own financial and medical decision making.
Let’s say that you become incapacitated, and interested parties notice that you really can’t make sound decisions anymore. They can petition the court to appoint a conservator and/or guardian to act in your behalf. The problem with this is that you may not have chosen the same decision maker if the choice was up to you.
In fact, the choice is up to you as long as you act in advance while you are still in full control of your faculties. If you want to make sure that your own carefully selected decision makers are acting in your behalf if it becomes necessary, you can include durable powers of attorney in your estate plan.
You may wonder why these powers of attorney should be durable. The reason for this is because typical powers of attorney do not stay active if the principal individual becomes incapacitated. Durable powers of attorney do indeed remain in effect upon the incapacitation of the person who created the device.
Depending on where you reside, it can also be possible to create something called a springing durable power of attorney. A regular durable power of attorney will go into effect immediately upon its execution. A springing durable power of attorney will only become active if you do, in fact, become incapacitated.
As you go through your life, doctors may need answers to certain questions. To empower someone to answer these medical questions in your behalf, you could create a durable power of attorney for health care (i.e., a health care directive or advance directive).
You would also want to sign a HIPAA release authorization. There are laws that prevent physicians and hospitals from sharing the medical records of their patients. With this HIPAA release, you would allow doctors to open up your medical records to the health care agent that you name in your durable power of attorney and possibly others.
Health care decisions are not the only types of decisions that may become necessary. Someone is going to have to handle your financial affairs. If you have a revocable living trust in place you could name a successor or disability trustee. This individual or entity could step in to act as the trustee if you were to become incapacitated.
Short of this, you could execute a durable power of attorney for financial matters. You name an attorney-in-fact, and this agent will be empowered to make financial decisions in your behalf should incapacitation strike during the latter stages of your life.
Clearly, you’re going to want to name someone who has a good business acumen. You are not required to have the same person serve as both the health care agent and the financial decision maker.