When we talk to clients about incapacity planning, we often highlight the benefits that developing a plan will have for your family. The idea of losing your ability to communicate is never a pleasant thought, but understanding the practical realities that can arise after this occurs is often enough to cause people to develop a plan. If you have yet to begin incapacity planning, you might want to consider what will happen to you and your family should you lose your ability to make choices.
Incapacity planning makes your wishes clear.
Whether you create medical directives that state the kind of health care treatment you want to receive, or create powers of attorney that delegate your decision-making responsibilities to others, your incapacity plan makes it very clear what your desires are. The planning process gives you the ability to consider the practical matters that will have to be dealt with should you become incapacitated. Once you identify all the practical concerns that need to be addressed, you can then create tools that address each of them.
Without any incapacity plan in place, those practical concerns will still need to be met, but you won’t be able to address them yourself. Instead, others will need to make decisions for you, and manage your responsibilities on your behalf. These responsibilities usually fault people in your family. If you don’t have a plan, those people will not know what you would have wanted, and will have to struggle with that uncertainty.
Incapacity planning avoids conflict.
Even though you can never be absolutely certain that your incapacity plan will prevent family conflict, you can be sure that your plan will make conflicts less likely to occur.
In the event that you become incapacitated and don’t have a plan in place, do you know who will make decisions for you? Do those people know what you would want? Do you have family members who might have differing opinions on what is in your best interests?
Without a plan, none of these answers are clear. What is clear, however, is that if family members should have differing opinions, arguments and conflicts can easily erupt. In the worst case scenario, these conflicts can escalate to the point where your family is forced to go to court to fight it out.
Regardless of what the court decides, such conflicts can destroy important family relationships. Even if you had been vocal about your choices, not having any capacity plan in place that protects those decisions can cause serious harm to those closest to you.
Michael Robinson, Estate Planning Attorney
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