Incapacity Planning

Planning for Incapacity

Incapacity planning is a critical component of an effective estate plan. Everyone is at risk of becoming incapacitated, whether it's due to illness, accident or even natural causes, therefore, every estate plan should have the proper legal tools in place to protect you and your family in the event that you become incapacitated and unable to act for yourself. Having the proper legal documents in place naming a trusted individual as your agent, will enable them to act quickly on your behalf. Saving your loved ones from having to go through the time-consuming and expensive guardianship proceeding process with the court to be named as your guardian.

Incapacity Planning Documents

When creating an estate plan, our attorneys at North Carolina Estate Planning & Fiduciary Law will discuss the options available to you and review any current plans in place to ensure that your assets are protected, and your wishes are followed. A comprehensive estate plan can include the following documents:

  • Durable Power of Attorney
  • Health Care Power of Attorney
  • Advance Directive for a Natural Death (“Living Will”)
  • HIPAA Authorization
  • Revocable Living Trust

Durable Power of Attorney

A Durable Power of Attorney (POA) allows you, the principal, to give another person, an agent of your choosing, permission to act on your behalf. The term “durable” simply allows for the power of attorney to survive your incapacity, and eliminates the need for a guardianship proceeding in most circumstances. The authority provided to an agent can be granted either out of convenience or during some type of incapacity, and allows them to act in regard to legal, financial, and business transactions.

Health Care Power of Attorney

A Health Care Power of Attorney (HCPA) appoints an agent of your choosing to make medical decisions on your behalf, in the event you are unable to do so. Specific instructions in the power of attorney can be included for the agent to voice your personal wishes to the appropriate medical professionals. This document can be tailored to include instructions to communicate certain desires about medical procedures or it can limit the decisions an agent can make on your behalf.

Advance Directives for a Natural Death (“Living Will”)

In the event that you have a terminal illness or condition, it is important to have a statement providing directives about the treatment you would like to receive, especially if you do not want your life medically prolonged. You can direct and authorize medical personnel to not prolong your life with any medical treatment such as artificial nutrition through feeding tubes, CPR, surgery, etc. A Living Will gives your health care providers these instructions with regard to withholding or withdrawing life-prolonging measures and eases the burden on your loved ones during this time.

HIPAA Authorization

A HIPAA Authorization allows the agents you name to act on your behalf to have access to private health care information and to communicate with your physicians, allowing them to make informed decisions about your needs.

Revocable Living Trust

A revocable living trust is a document that provides an individual with legal protection for their assets by removing them from their name and placing them into the trust. During your lifetime you can name yourself the trustee of the trust and maintain control over the assets. Upon incapacity or death, a successor trustee can take control and follow the trust instructions for the management and disposition of assets. In addition to the trust sheltering your assets from creditors, and reducing possible estate taxes, it also eliminates the need for your loved ones to petition the court for a guardianship to manage your financial affairs.

At North Carolina Estate Planning & Fiduciary Law, we can assist you in the preparation or revisions of these documents to ensure that your wishes relative to any incapacity you may suffer are carried out properly. Our senior partner, Jim Hickmon, is a Board Certified Specialist in Estate Planning and Probate Law and has over 20 years experience in estate planning. He and his staff are experienced, strategically minded, and understand the impact incapacity planning decisions may have. Our attorneys can help guide you through the entire estate planning process to ensure all elements are considered and a plan is created tailored to your personal circumstances.

Our attorneys assist families, executives and entrepreneurs with designing and implementing estate planning and wealth preservation strategies of all types. Whether you need assistance in creating a comprehensive estate plan, need a plan reviewed, or simply need a document to protect you in the event of incapacity, call us today to schedule a confidential consultation with one of our experienced estate planning attorneys at (704) 248-6325 or complete our online form.


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