Planning for Incapacity

Death is certain but estate planning shouldn’t contemplate just your death. You should plan for the event, however remote, you become incapacitated and unable to make medical or financial decisions.

Appoint Someone to Manage Your Financial Affairs

This is where a Durable Power of Attorney comes in. If you are unable to handle your affairs and you do not have a Durable Power of Attorney, then Michigan law provides for a court proceeding in which someone or a bank is appointed to act for you as conservator if you are mentally incompetent. Conservatorship and guardianship proceedings are expensive, timely and a huge hassle for everyone involved. The court would oversee all aspects of your financial affairs and the conservator would have to seek court approval before taking any actions on your behalf. A big pain, really.

You can avoid this with a Durable Power of Attorney in which you give a relative, friend or even a bank the power to act for you while you are incapacitated. Actually, a Durable Power of Attorney doesn’t have to appoint someone only if you are incapacitated – many people appoint their spouses or a close relative or friend to act even if you are not incapacitated and this is often handy if you are traveling or injured and can’t quite manage your affairs right away and just need help.

Appoint a Health Care Agent

If you become unable to direct your own medical care because of illness, an accident, or advanced age, a Living Will and Patient Advocate Designation becomes your lifeline. When you don’t write down your wishes about the kinds of medical treatment you want and name someone you trust to oversee your care, these important decisions can be placed in the hands of other family members, doctors, or sometimes even judges. Only you know what you would want.

First, you’ll need a Patient Advocate Designation to name someone to direct your health care decisions (this is just like a Durable Power of Attorney where you name someone to make your financial decisions for you). Second, you’ll need a Living Will which spells out the types of medical treatment you would or would not like to receive. Note that there is no Michigan law on Living Wills – Michigan is only one of three states without a statute specifically authorizing Living Wills, but that doesn’t mean you should go without one because a Living Will can still be very helpful in guiding others in understanding your treatment wishes.

I encourage you to contact me with any questions about Living Wills and Patient Advocate Designations or with any other estate planning questions you might have.


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