Many people hear the words “Estate Planning” and assume it doesn’t apply to them because they don’t see themselves as having assets that can be/need to be organized and protected. But, while your assets are an important part of any Estate Plan, I see too many people who ignore the need for Estate Planning because they forget the other foundational planning issue: capacity.
As long as you have the legal “capacity” to make your own decisions (financial, health care, where you live, just to name a few), you are, of course, able to do so. But, so few people stop to think that if they delay making the choices one is allowed to make in a “capacitated” state about what will happen when they no longer have capacity to decide for themselves, they forfeit their right to make those decisions. The law will only allow individuals with appropriate capacity to create binding, legal documents. So, what happens when we don’t create documents while capacitated and then we become incapacitated?
One of two things will likely happen in Minnesota: either someone will petition (ask/request) to handle things for you, or the court will decide which professional will step in to supervise and arrange for your needs. But, what if you’re uncomfortable with strangers or there are certain family members you would not trust with those choices?
Most people I know would rather decide for themselves who is going to make important decisions for them in the event they can no longer decide for themselves. So why do so many delay?
We have efficient, uncomplicated, straight-forward legal documents that allow us to name individuals to act in these matters, and even describe when and how to do it. For financial decisions, we have the Power of Attorney (POA), which grants a person you choose (an Attorney-in-Fact) to pay your bills, handle your benefits, and other important financial transactions. This power can be limited in several ways, which an attorney can describe and explain to you. This is a powerful document that functions as a foundational piece of anyone’s Estate Plan.
Further, a Health Care Directive (HCD) specifically allows this same type of decision-making power for your health care and medical treatment in the event you are unable to make decisions for yourself. You choose a person to act as your agent, and you are able to give very specific instructions to them, if you choose.
Don’t get caught up thinking that Estate Planning is only for the wealthiest among us. Of course, everyone is advised to examine their assets as they plan for their future. But, don’t let that be the only reason you plan. Don’t stick your head in the sand! Think about whom you trust and how you would like them to assist you if you lose your capacity to decide for yourself. Exercise your right to make those decisions while you are able, and rest assured that you’ve taken care of yourself and your future. Talk to an attorney and ask them about which foundational legal documents you need to plan for your future.This blog is written by Bridget-Michaele Reischl, Attorney DECORO LAW OFFICE, PLLC www.decorolaw.com