When I was 18 my grandfather was admitted to the hospital for a routine operation and never came out. Due to an error committed by a young physician he suffered a brain injury from which he would not recover. My Mom and her siblings – with his wife (second marriage) – were suddenly forced to decide whether to terminate life support.
My grandfather was an active man who loved the outdoors. Well into his 60s he was still happiest when camping, hiking or climbing mountains. My most prevalent memory of my grandfather is a picture of him with his pickaxe stuck in the side of a mountain as he crested the summit of his beloved Mt. Hood in Oregon. While this could have been a battle between his current wife and his children from a prior marriage, my grandfather’s love of all things outdoors left little doubt about whether he would have wanted to remain alive with the assistance of machines. My family was able to avoid major conflict over this issue – but we were lucky. Not all families are able to avoid such conflicts.
If you’ve read my prior posts, you know that a will provides instructions for how to distribute your assets or who will care for your kids after death. But a will only handles matters after you die. It doesn’t do anything for you while you’re alive and unable to speak for yourself. For that you need incapacity planning.
What is incapacity planning?
Incapacity planning is a broad area of law that covers how you are cared for if you become physically or mentally unable to care for yourself. The type of care could range from simple tasks like buying groceries and handling financial matters to more important decisions such as selling real estate, making gifts or, as in the case of my grandfather, making critical medical decisions. Most importantly for those of you with minor children incapacity planning allows you to determine who will care for your children if you are unable – even temporarily – to care for them yourself.
Failure to plan ahead can have tragic consequences for individuals – even those who are legally married – who can no longer speak for themselves. And if you are in a nontraditional relationship – or simply want to leave these decisions in the hands of anyone not related by blood or marriage – incapacity planning is crucial. As previously discussed, the State of Minnesota places no legal value on your nontraditional relationship. So, the law will always favor your biological over your chosen family when faced with the task of appointing a guardian or conservator to care for your financial or medical needs and the needs of your kids.
So, you must think about issues such as incapacity and estate planning well ahead of when a traditional client might be pondering these issues. It is essential that you nominate in writing a person to make medical and financial decisions on your behalf in the event of your incapacity. I will discuss the documents required to make such nominations in my next few blog posts.