You may be one of many worried about the financial issues of mental
incompetence, obligations of caring for a disabled relative, or providing
a residence and care for the physically incapacitated. If you are a
principal income producer and you become incompetent or incapacitated for
any reason, a drastic and involuntary financial adjustment in your family
structure will occur. If long-term public or private institutionalization is
required, your property may be depleted (or you may have to expend all or
almost all of your own assets) before you will be eligible for governmental or
None of these are pleasant thoughts. But you must face these and other issues
before it is too late and many important planning options are lost. To
preserve and protect both your property and your dignity, you must act now!
If you are interested in these problems and their solutions keep reading.
The living will:
If you were unconscious or incompetent or for any
other reason were unable to make your own decisions regarding health care,
who, if anyone, would you want to make such decisions? A so-called Living
Will may be part of the solution.
A Living Will (often called an Advance Directive for Medical Care) is a
document that expresses the desire - that when death is imminent, loss of
mental capacity is substantial, incurable, irreversible, inevitable, and with no
hope of recovery - extraordinary, artificial, life-sustaining techniques should
not be used to prolong life. A Living Will coupled with other documents
your attorney can draft for you is certainly part of the way to express your
The health care proxy:
A Health Care Proxy (also called a durable power of attorney for health care) has been authorized in many states by
specific law. A health care proxy is broader and more flexible than a living
will since it provides for many types of health care decisions other than those
regarding life sustaining treatment. It allows you to appoint an agent,
someone to make any and all health care decisions on your behalf in the event
you are unable to make your own except to the extent you provide otherwise.
You, of course, continue to make decisions as long as you are able to do so.
You can refuse any health care treatment merely by objecting and can revoke
the authority you give to your agent orally or in writing. A health care proxy is
sometimes used in addition to a Living Will or may be broad enough to take the
place of a living will.
The durable power of attorney
A power of attorney is a relative simple and inexpensive legal document by which you give a spouse,
child, or other relative or someone else (the attorney-in-fact) the right to act in
your place on your behalf with respect to financial matters. You can make this
power as broad or as narrow as you wish. A well drawn durable power of
attorney is for many people as important as a will. It may negate the need to
petition a court to have a guardian or conservator appointed to handle your
assets if you can't. A durable power of attorney is a "must" if you are
currently suffering from a physical disability or illness that could lead to
permanent or long-term incapacity but should be considered even by healthy
individuals who would like to provide for continuity of management of assets if
- for any reason - they can't manage those assets or handle their own affairs for
a period of time.
The revocable living trust:
Where the assets in your estate are
complex, a revocable trust is often indicated in conjunction with the durable
power of attorney. As is pointed out in The Book of Trusts?4th Edition, a
revocable living trust can enable you to keep control as long as you are able.
The trustee you select assumes the responsibility of investing, managing, and
conserving the property on your behalf and for your other beneficiaries if you
should become incompetent. A revocable trust allows you to change your mind
and regain property that you have put into the trust or change the terms of the
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