Incapacity

Planning for Disability

Disability planning may be the most neglected part of estate planning today. Many people believe that if they are mentally incapacitated, someone (their spouse, their oldest child, their next of kin) is automatically deputized to handle their affairs. That is simply not true. If you have not planned for your disability, then the only recourse is for someone to start a guardianship proceeding in Probate Court and to subject you to a formal trial to prove your incapacity. This can be a humiliating and heartbreaking experience for families. If the court finds that you no longer are able to handle your affairs, then a legal guardian will be appointed to administer your affairs under the supervision of the court, perhaps for many years.

With advance planning, you may be able to avoid guardianship proceedings. Through Powers of Attorney and Trusts, you may choose the people you wish to handle your affairs during disability, without court intervention. Powers of Attorney may be very useful tools for disability planning, but they are typically form documents granting “bare authority” rather than providing your personal instructions. A customized Trust is a better tool for establishing your wishes. For example, do you want to stay at home or go into a nursing home, even if it costs more to keep you at home? Would you be happy living with an adult child, or is that the last thing in the world you want? Should a person you live with be compensated to avoid any financial burden? Who will decide that you are disabled, that it’s time to turn over the keys to the car? Who should be in charge of you and your affairs if you are disabled? One person or a team? These are important questions, affecting your quality of life, that will probably arise. If you don’t answer them, who will?

Advance Health Care Directives also give you the opportunity to name a health care agent to make medical decisions on your behalf if you can no longer make them yourself. These directives may include detailed instructions as to your treatment wishes, and you may provide direction on end-of-life issues, such as your continued care if you are suffering from a terminal condition or you are permanently unconscious. Your making these choices will help take the burden of decision off your family.

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With offices in Madison and Evansville, the attorneys at Wilson Law Group assist clients with Estate & Business Planning, Probate & Trust Administration, and Elder Law & Medicaid Planning throughout Southern Wisconsin.