When Incapacity Strikes: Protecting Your Interests
Incapacity means the inability to make or communicate decisions for yourself, whether due to illness, injury, disability, or cognitive decline. Incapacity can have serious consequences for your personal and financial affairs, especially if you do not have an estate plan in place. In this article, we will explain what constitutes incapacity under Washington law, what happens if you become incapacitated without an estate plan, and how you can prepare for the possibility of incapacity in advance.
How is Incapacity Determined in Washington?
According to Washington law, incapacity is defined as “the absence of legal ability to perform a particular act or acts”. This means that incapacity is not a fixed or permanent state, but rather depends on the nature and complexity of the decision at hand. For example, a person may be capable of making some basic personal choices, such as what to wear or eat, but not others, such as where to live or how to manage their finances. Incapacity can also vary over time, depending on the progression of a disease or the effects of medication.
The determination of incapacity is usually made by a medical professional, such as a doctor or a psychologist, based on objective criteria and tests. However, sometimes a court may need to intervene and appoint a guardian or a conservator to make decisions for a person who is deemed incapable. A guardian is responsible for the personal care and well-being of the incapacitated person, while a conservator is responsible for the management and protection of their assets. A guardianship or a conservatorship is a legal process that involves filing a petition, notifying the interested parties, conducting an investigation, holding a hearing, and issuing a court order. The process can be costly, time-consuming, and stressful for all involved, and it can also result in a loss of privacy and autonomy for the incapacitated person.
What Happens if You Become Incapacitated Without an Estate Plan?
If you do not have an estate plan that addresses the possibility of incapacity, you may face several problems and risks. First, you may not have anyone authorized to act on your behalf or represent your wishes in case of a medical emergency or a financial crisis. This can cause delays, confusion, and disputes among your family members, friends, or health care providers, and it can also expose you to potential abuse or exploitation by unscrupulous individuals. Second, you may not have any control over who will make decisions for you or how they will do so. You may end up with a guardian or a conservator who does not know you well, does not share your values, or does not act in your best interests. Third, you may not have any say in how your property will be distributed after your death. If you die without a will, your estate will be subject to the state’s intestacy laws, which may not reflect your preferences or priorities. You may also miss out on tax-saving opportunities or asset protection strategies that could benefit your heirs and beneficiaries.
How Can You Prepare for the Possibility of Incapacity in Advance?
The best way to prepare for the possibility of incapacity in advance is to consult with an experienced estate planning attorney who can help you create a customized and comprehensive estate plan that suits your needs and goals. An estate plan is a set of legal documents that outline your wishes and instructions for your personal and financial affairs in case of death or incapacity. A comprehensive estate plan typically includes the following components:
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- A power of attorney for finances, which allows you to name a trusted person or entity to manage your assets and pay your bills if you are unable to do so yourself.
- A power of attorney for health care, which allows you to name a trusted person or entity to make medical decisions for you if you are unable to do so yourself.
- A living will or a health care directive, which allows you to express your preferences and values regarding end-of-life care, such as whether you want to receive life-sustaining treatment, organ donation, or hospice care.
- A living trust, which allows you to create a legal entity that holds and manages your assets for the benefit of yourself and your beneficiaries, and that can provide continuity, flexibility, and protection in case of incapacity or death. Unlike a power of attorney, a living trust can provide detailed instruction for management of your assets during your incapacity, and it has less likelihood of being rejected by banks and brokerage houses.
- Although, a will only express your wishes at death, it can work with your living trust to ensure consistent management and distribution of your assets after death.
By creating an estate plan that addresses the possibility of incapacity, you can ensure that you have someone authorized to act on your behalf or represent your wishes in case of a medical emergency or a financial crisis. You can also ensure that you have control over who will make decisions for you or how they will do so. You can also ensure that you have a say in how your property will be distributed after your death. In addition, you can take advantage of tax-saving opportunities or asset protection strategies that could benefit your heirs and beneficiaries.
Planning for the possibility of incapacity in advance can provide peace of mind and security for oneself and one’s loved ones. However, many people neglect this important aspect of their estate plan, and face serious consequences when they become incapacitated without proper documents.
An estate planning attorney can help create or update a living trust, a will, a healthcare power of attorney, a general durable power of attorney, and other documents that can provide continuity, flexibility, and protection for one’s assets and affairs. An estate planning attorney can also help with asset protection and tax planning strategies that could benefit one’s heirs and beneficiaries.