Incapacity means not having the physical or mental ability to do certain tasks or make important decisions. For example, if you cannot physically go to the bank to do transactions that require you to appear in person, or if you cannot understand the transactions you need to carry out your daily life. Incapacitation is most often the result of an accident or illnesses. When an individual becomes incapacitated, they are no longer able to remain in control of important affairs such as their finances and health care decisions.

Incapacity planning is a great tool that gives you a way to become better prepared for the unthinkable. Your incapacity plan can include documents that list your plans for care if you ever become incapacitated. Incapacity planning also allows you to assign trusted individuals to oversee your finances and make your important medical decisions when you are unable to do so. By planning for incapacity, you can be confident your wishes will be honored if you cannot voice decisions yourself.   

Living Will

A living will can be a beneficial tool to include in your incapacity plan. A living will is a document that includes instructions for your preferred methods of care in the event you become incapacitated. A living will is different from your last will and testament, which does not go into effect until after you pass away. Instead, a living will is effective while you are still living but unable to make decisions for yourself. Your living will informs loved ones and medical professionals of your desired healthcare plans rather than leaving them to assume those decisions for you. By creating a living will, you can spell out your wishes to ensure you are always cared for in the ways you prefer. This document prevents artificially prolonging your death.

Designation of Health Care Surrogate

A designation of health care surrogate is another incapacity planning tool that can help you better prepare for your health care if you were to become incapacitated. A health care surrogate is someone who you appoint as your agent to make your medical decisions. By choosing a trusted health care surrogate, you can be confident the health care decisions made on your behalf will likely be in your best interest.

If you create a living will, as mentioned above, your designated health care surrogate will refer to that document when making your medical decisions. This will ensure you are receiving your preferred medical care when possible. If there is no living will, your designated health care surrogate will make decisions they believe are in your best interest. Appointing a trusted health care surrogate is important to ensure you receive similar medical care to what you would have chosen if you were able to decide for yourself.   

Currently, Florida law allows your surrogate to act on your behalf without a finding of incapacity. One of our attorneys took advantage of this when he broke his ankle- his spouse was able to coordinate the radiologist and the orthopedist while he recovered on at home.

Durable Power of Attorney

A durable power of attorney is someone you appoint to make decisions for you when certain situations arise, like incapacitation. Unlike a designated health care surrogate, a durable power of attorney can decide more than just your health care decisions. A durable power of attorney may be authorized to make both medical and financial decisions on your behalf.

If you decide to assign one person to be in charge of both medical and financial decisions, you have the option to assign them a durable power of attorney for health care and finances. However, if you would like to assign separate individuals to oversee your medical and financial decisions, you may do a designation of health care surrogate and a durable power of attorney for finances. People have various strengths and weaknesses, choosing the right power of attorney and health care surrogate lets you leverage your loved ones’ strengths. Assigning a durable power of attorney, whether it is for medical or financial decisions, is important so you can be sure a trusted individual oversees those important life decisions.

Revocable Living Trust

A revocable living trust is a way to store, invest, and distribute assets. Revocable living trusts can be a beneficial tool when planning for incapacity. When creating a revocable living trust, you assign a trustee who is in charge of handling the trust’s assets. You can assign yourself as the trustee, and someone you trust as the successor trustee. In the event you become incapacitated, your trusted successor trustee would then be legally authorized to oversee the trust account. By creating a revocable living trust, you can be assured a trusted individual is in control of the assets in your trust when you are unable to manage the trust yourself.

Do Not Resuscitate

In Florida, you have the option to include a Do Not Resuscitate Order in your incapacity plan. A Do Not Resuscitate order will tell medical professionals you do not wish to be resuscitated in the event of a respiratory or cardiac arrest. It is important to realize a Do Not Resuscitate Order is not effective unless it is readily available to medical professionals in the event of respiratory or cardiac arrest. These are executed with your physician and MUST BE ON YELLOW PAPER. If the paper on which the DNR is printed is not yellow, it will have no effect.

Numerous beneficial estate planning tools can help one plan for incapacity. It is beneficial to consider incapacity planning so you can always be prepared for life’s unforeseen events. If you or a loved one need assistance with planning for incapacity, please contact us today.

Written by Alison Koukoulis and edited by Patrick D. Quarles, Esq.

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