When considering estate planning, most people automatically think about taking legal steps to ensure the right people inherit what they have when they pass away. And these people aren’t wrong. Putting strategies in place to protect and pass on what you own is a fundamental part of the planning equation. However, providing for the proper distribution of your assets upon your death is just one part of the process. And it’s not even the most critical part.
You can’t ignore that at some point before your eventual death, you could lose capacity by accident or illness. Each of us is at constant risk of experiencing a devastating accident, illness or disease that renders us incapable of caring for ourselves or our loved ones. But unlike death, incapacity comes with an uncertain outcome and timeframe.
Incapacity can be a temporary event from which you eventually recover, or it can be the start of a long and costly process that ultimately ends in your death. Incapacity can drag out over many years, leaving you and your family in agonizing limbo. This uncertainty is what makes incapacity planning so incredibly important. In fact, incapacity can be a far greater burden for your loved ones than your death. This is true because of its potentially ruinous financial costs, and the emotional trauma, contentious court battles, and internal conflict your family may endure if you fail to properly plan.
Planning for incapacity requires a different mindset and different tools than planning for death. You need to select the person(s) you want making your healthcare, financial, and legal decisions for you until you either recover or pass away. If you don’t legally name someone to make these decisions during your incapacity, the court will choose someone for you. And this is where things can get extremely difficult for your loved ones. This person could be a family member you’d never want managing your affairs, or a professional guardian who charges exorbitant fees. Either way, the choice is out of your hands.
Determining which planning tools you should use to grant and guide this decision-making authority depends entirely on your personal circumstances. A Will is one planning tool that’s totally worthless to prepare for your incapacity. A Will only goes into effect upon your death, and then it merely governs how your assets should be divided. So, having a Will does nothing to keep your family out of court and out of conflict in the event of your incapacity.
You may be powerless to prevent your potential incapacity, but proper estate planning can at least give you control over how your life and assets will be managed if it does occur. This important planning can prevent your family from enduring needless trauma, conflict, and expense during this already trying time.
There are multiple planning vehicles to choose from when creating an incapacity plan. And this shouldn’t be just a single document; instead, it should include a comprehensive variety of multiple planning tools, each serving a different purpose. A health care proxy, durable power of attorney and a trust are the main tools for the job.
Don’t let a bad situation become much worse. If you’ve yet to plan for incapacity, meet with us as your personal lawyer right away. We can counsel you on the proper planning vehicles to put in place, and help you select the individuals best suited to make such critical decisions on your behalf. If you already have planning strategies in place, we can review your plan to make sure it’s been properly set up, maintained, and updated. Contact us today to get started by calling 718-514-7575.
Monet Binder, Esq., has her practice in Queens, dedicated to protecting families, their legacies, and values. All halachic documents are approved by the Bais Havaad Halacha Center in Lakewood, under the direction of Rabbi Dovid Grossman and the guidance of Harav Shmuel Kaminetsky, shlita, as well as other leading halachic authorities. To learn more about how a power of attorney can help you, you can send her an email at This email address is being protected from spambots. You need JavaScript enabled to view it. or call 718-514-7575.
