Creating an estate plan can be more than saving money on taxes, avoiding probate and leaving a legacy after your death. This includes putting a plan in place that will manage your affairs if you become incapacitated because of not having the ability to make decisions for yourself.

What happens without an incapacity plan?

This process can be very stressful because your family would have to go to court and will be faced with an expensive and time-consuming conservatorship or guardianship proceeding. Having an estate plan that lacks a comprehensive incapacity plan, you would need a guardian or conservator to be appointed by a judge for your estate to be managed. This will control your assets and health care decisions on your behalf which is better known as financial decisions and healthcare decisions.

  • Finances during incapacity

Your finances can suffer if you are incapacitated because you are not legally able to make decisions for yourself. These pertain to financials, investments and/or tax matters. There are bills that need to be paid, tax returns to be filled and investments that need to be managed.

  • Healthcare during incapacity

 When you become legally incapacitated, due to patient privacy laws, the people you love can be denied of having access to medical information which could possibly lead into a crisis. This could end up in a court, battling over medical treatment or procedures that you should or should not receive. A good example would be Terri Schiavo’s husband and parents did for 15 years!

For your family to be empowered in making decisions for you when you are legally incapacitated, these five essential legal documents would need to be in place:

1. Financial Power of Attorney: Your agent will be allowed and have access to make financial decisions such as paying bills, manage investments, file your tax returns, sell real estate and all other financial matters that you will have in your financial portfolio.

This legal document is laid out in two forms which are “springing” and “durable”. A durable power of attorney is carried out when the document is signed. A springing power of attorney begins after you’ve been declared as mentally incapacitated. There are many factors to consider because they have pros and cons to each form. Everyone is different and we can help you decide which is the best and most appropriate for your situation.

2. Revocable Living Trust: A legal document having three parties: the beneficiary, trustee, and grantor (also known as trustmaker or settlor). The beneficiary is the person who benefits from the assets transferred into the trust. The trustee is the person who legally owns and manages the assets transferred into the trust. The grantor/trustmaker/settlor is the person who creates the trust. Usually in most cases, you will be the trustmaker, the trustee and the beneficiary of your own revocable living trust. Roles changes when you become incapacitated and the person you pick as your designated successor trustee will come in to handle your affairs and manage the trust assets for your benefit. Because the trust controls how your property is used, you can direct your wishes how your assets are to be used if you become incapacitated. For example, your trustee will have authorization to make gifts or pay your grandchildren(s) tuition towards their education.

3. Medical Power of Attorney: Also known as medical or health care proxy, if you become incapacitated, this legal document will allow your agent the authority to make healthcare decisions.

4. Living Will: This legal document shares your wishes regarding end of life care if you become incapacitated. Although a living will is not necessarily enforceable in all states, it can provide meaningful information about your desires even if it isn’t strictly enforceable.

5. HIPAA Authorization: In this legal document, your doctor will be able to disclose and release your medical information to your designated agent. Due to health privacy laws, this legal document is important to have because, without it, your agent and/or family will be stressed and will have difficulty getting information and learning about your condition.

Is your incapacity plan up to date?

Just because you have all these legal documents for your incapacity plan created and in place, you cannot simply store it away and forget about them. Life happens and things change, certain life events happen such as moving to a new state or going through a divorce. Your incapacity plan must be reviewed and updated periodically. If you keep this legal document up to date and make this available to your loved ones and trusted helpers, things should work out the way you wish it to be if needed. Give us a call at (909) 256-6702 and schedule your FREE consultation. We can help you put your plan together. MMZ LAW offers services in Estate Planning, Elder Law, and Probate. This includes conservatorship/guardianship, power of attorney, trust administration, trust and estate matters, special needs, probate matters and Medi-Cal Planning.



341 W. 1st St. Suite 100
Claremont, CA 91711

MARIVEL M. ZIALCITA is the founder of MMZ LAW, A Professional Corporation, where she practices in the areas of trust & estate, elder law, special needs, conservatorship, trust administration, and probate. Ms. Zialcita is a frequent speaker on trust and estate matters and holds memberships in the State Bar of California, Trust and Estate Section, The San Bernardino County Bar Association, Wealth Counsel and Elder Counsel. She currently assists in the pro bono legal services program at the James L. Brulte Senior Center in Rancho Cucamonga, California. She is based in Claremont but assists clients throughout Southern California.

This information is educational information only and not legal advice.