subject: What Happens Without an Incapacity Plan? [print this page] What Happens Without an Incapacity Plan? What Happens Without an Incapacity Plan?
It's easy to think of planning your estate in terms of simply making a Will that provides for the distribution of your assets after you pass away. In reality, though, an effective estate plan addresses issues you might encounter during your lifetime, as well as those that will arise after your death.
For instance, a good incapacity plan is part of a comprehensive estate plan. With an incapacity plan, you decide who will take care of the financial side of your life in the event that you become mentally incapacitated, and you decide who will handle your personal issues, such as making medical decisions for you.
What happens if you become ill or injured and lose the ability to handle these matters on your own and you haven't made an incapacity plan?
Similar to what happens if you pass away without a Will or Trust, if you become disabled without an incapacity plan, the state in the form of the probate court will handle your decision-making for you. Without an incapacity plan, you and your loved ones will go through a process that's become known as Living Probate. The purpose of Living Probate is to allow the court to appoint a guardian and/or a conservator to make important decisions for you. A conservator is someone who's appointed to handle your financial affairs, and a guardian is someone who is appointed to handle your personal affairs.
Often, a family member or close friend will petition the court to be appointed in one or both of these capacities. This may or may not be someone you would have chosen on your own. Once the judge is satisfied that you truly are incapacitated often shown through medical records and the testimony of your health care providers he or she will determine whether the petitioner is suitable to manage your affairs. If so, that person will officially be put in charge of acting on your behalf.
The Living Probate process can be expensive, it can take time, and it can be unpredictable. Even after a guardian or conservator is appointed for you, that person will be under court supervision, will be required to make periodic reports to the court, and may have to get court permission before taking certain actions. Add to this the fact that Living Probate is a public process, and it's easy to see why incapacity planning is so important.
A qualified estate planning attorney can help you establish an incapacity plan that lets you choose who will be in charge of your finances and personal care, and that allows you to set the rules for these individuals.
