Ben Franklin once said “In this world nothing can be said to be certain except death and taxes”. Many people have a plan for death and taxes, but few people have a plan in place for incapacity - the physical or mental inability to do something or to manage one’s affairs.

The reason for this is simple. Most people, however begrudgingly, accept the certainty of death. Incapacity is not guaranteed. Everyone knows that as we age, our minds and bodies deteriorate. We can’t predict the extent of that decline or how it will interfere with our decision making capabilities. In an ideal world we would all go to the grave with our wits about us, able to express our dying wishes until the moment of our actual death. However, it’s a sad fact that many of us will become incapacitated, legally helpless, at some point before our death.

Legal incapacity is not solely the result of advanced age. Incapacity can be the result of a tragic accident or unexpected health event occurring at any point in a person’s life. The roads to incapacity are many, but the result is always the same - a person who is unable to understand the nature and consequences of their actions. Once a doctor has declared someone incapacitated the law no longer recognizes their decisions as valid. Someone of sound mind has to make decisions for the incapacitated person. By putting a plan for incapacity in place now, you can know who that person will be and talk to them about the decisions you want them to make on your behalf. Elder Law attorneys are all too familiar with what happens in the absence of incapacity planning. Some incapacitated people are lucky enough to have family or loved ones with the time, resources, and the integrity to manage their affairs and make decisions in their best interest. They can “clean up the mess” caused by a failure to plan for incapacity. Others are not so lucky.

Because incapacity is not a certainty, the question for many of us becomes “Why should I expend my time and resources now to plan for something which may or may not happen?” It would take a fortune teller to answer the question “Will I become incapacitated?” It takes an experienced Elder Law attorney to answer the question “What can I do now to ensure that my wishes (and assets) are protected and respected no matter what happens to my mind?”

Every client is different. In 25 years we’ve seen it all and we can help. We can talk about Durable Powers of Attorney, Advance Health Care Directives, Revocable Living Trusts, all legal tools that will build you a bridge over troubled water in the event of your future incapacity.

Keep in mind, as useful as these tools are in the hands of a skilled Elder Law attorney, they do more harm than good if accomplished with a “do it yourself online!” approach. Elder Law and Estate Planning is fraught with traps for the uninformed and “one size fits all” forms could end up fitting you into a corner you never intended to be in. You need an attorney to ensure that your documents will reflect your wishes and have the desired effect.

Don’t wait until it’s too late for you to make meaningful decisions. What will happen to the fruits of your life’s work when you are no longer in the driver’s seat?

For more elder law information:

The Difference Between a Power of Attorney and a Guardianship

Do You Have a Powerful Power of Attorney

What is an Elder Law Attorney?