I run into clients often who jokingly tell me “I’m not going to die” when discussing their estate planning.  Although many of us would like to think we are immortal, it is a fact that we will all die sooner or later.  Harder to imagine for many people is that they may experience a period of incapacity prior to death.  This may happen due to hospitalization or illness, or due to dementia in one of its many forms, including Alzheimer’s disease.  

It is just as important to plan for incapacity as it is to plan for death.  As we often tell our clients, planning for incapacity may be even more important, because you are still alive and will be directly impacted by how your assets are managed for you and who is in control on your behalf.  Whatever happens after your death will impact those you leave behind, but for better or worse will not impact you!

Planning for your incapacity is serious business.  It involves identifying people you can trust, and creating documents that will allow them to assist you if and when you need or want assistance in the future making financial, legal or health care decisions.  Planning for incapacity involves:

• Creating a Power of Attorney that names a person who you authorize to handle your legal and financial affairs if you are unable to do so.  This should be someone you trust implicitly to handle things appropriate and in your best interest.
• Creating a comprehensive list of assets, legal and financial advisors, beneficiaries, digital asset access information, and other information that will be crucial to someone who may have to take over your financial affairs unexpectedly.
• Creating a Health Care Proxy that names a Health Care Agent to make health care decisions for you if you are unable to make those decisions yourself.
• Making sure your Health Care Agents understand your wishes about the type of care you want to receive, particularly at the end of life, and even more importantly if you become incapacitated and are unable to articulate your care preferences at that time.  There are many organizations that assist people to express those wishes – The Conversation Project is one of many.
• If you already have these documents, reviewing them periodically to determine if the people named in the documents are still trusted people you can count on to be there if you are not well.
• If the people you have named are getting older or are not well, do you have appropriate alternates named to take their place if they cannot (or do not wish to) serve in those roles if the time comes?

In these documents you can also designate a person to serve as your conservator or guardian should a court need to step in and appoint a person to make decisions for you.  This can help avoid a situation where you need assistance and the Court must appoint someone to make decisions for you, who may not be someone you would have chosen.  I am reminded of the recent move I Care a Lot, a black comedy / thriller distributed by Nexflix in 2020, starring Rosamund Pike who won a Golden Globe for the role. The movie tells the story of a professional legal guardian who has less than good intentions.    Although the movie is not based on a true story, it is based on real-life situations and scams like one that occurred in New York in 2013.

Unfortunately, this past year and a half has taught us that life and health are unpredictable.  Make sure you have all your bases covered, and have chosen and named people you trust to handle things for you if you are unable so you don’t end up vulnerable to those who may take advantage of your situation.

Maria Baler, Esq. is an estate planning and elder law attorney and partner at Samuel, Sayward & Baler LLC, a law firm based in Dedham. She is also a former director of the Massachusetts Chapter of the National Academy of Elder Law Attorneys (MassNAELA), and the current President of the Board of Directors of the Massachusetts Forum of Estate Planning Attorneys. For more information, visit www.ssbllc.com or call (781) 461-1020. This article is not intended to provide legal advice or create or imply an attorney-client relationship. No information contained herein is a substitute for a personal consultation with an attorney.

August, 2021

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