Although you likely focus on the desire to determine how your assets are distributed after your death when you think about estate planning, a comprehensive estate plan can – and should – do much more. Planning for incapacity, for example, should be part of your comprehensive estate plan because incapacity can occur at any time due to illness, injury, or the natural effects of aging, leaving you unable to make financial or medical decisions for yourself. In New Hampshire, having the right legal documents in place ensures that your affairs are managed according to your wishes and that your loved ones are not burdened with difficult decisions. To help ensure that you are protected, the attorneys at Legacy Care Law Firm discuss incapacity planning in your New Hampshire estate plan.
Understanding Incapacity in New Hampshire
Incapacity refers to a person’s inability to make or communicate informed decisions due to mental or physical impairment. Under New Hampshire law, incapacity can be determined by a court or by medical professionals, depending on the circumstances. If you become incapacitated without proper legal documents in place, your family may have to go through a court process to obtain guardianship or conservatorship, which can be time-consuming, expensive, and emotionally challenging.
Essential Documents for Incapacity Planning
To ensure that your wishes are followed, and your affairs are managed appropriately in the event of incapacity, you will likely want to include the following documents in your estate plan:
- Durable Power of Attorney for Finances: A Durable Power of Attorney for Finances allows you to appoint a trusted individual (your “Agent”) to handle your financial affairs if you become incapacitated. This document gives your Agent the authority to pay bills, manage investments, file taxes, and conduct other financial transactions on your behalf. Without this document, your loved ones may need to petition the court for a conservatorship to gain control over your finances.
- Durable Power of Attorney for Healthcare: A Durable Power of Attorney for Healthcare, also known as a Healthcare Proxy, allows you to designate a trusted individual to make medical decisions on your behalf if you are unable to do so. This document ensures that someone you trust is making healthcare choices that align with your wishes rather than leaving those decisions to doctors or the court.
- Living Will: A Living Will is a document that outlines your preferences for medical treatment in the event that you are in a terminal condition or permanently unconscious. It can specify whether you want life-sustaining treatments such as artificial nutrition, hydration, or mechanical ventilation. This document guides your healthcare agent and medical providers in making decisions that reflect your values and preferences.
- HIPAA Authorization: The Health Insurance Portability and Accountability Act (HIPAA) restricts access to your medical records. By signing a HIPAA Authorization, you can allow designated individuals, such as your healthcare proxy or family members, to access your medical information. This ensures that your chosen decision-makers have the necessary information to make informed healthcare choices on your behalf.
- Revocable Living Trust: A Revocable Living Trust can help manage your assets during incapacity by allowing a successor Trustee to step in and manage the trust’s assets according to your instructions. Unlike a Power of Attorney, which primarily governs assets in your name, a trust provides a seamless transition in asset management without the need for court intervention.
Avoiding Guardianship and Conservatorship
One of the primary goals of incapacity planning is to avoid the need for guardianship or conservatorship. In New Hampshire, if you do not have a Power of Attorney or other legal arrangements in place, a family member or interested party may need to petition the court for authority to manage your affairs. This process can be costly and lengthy and may lead to court-appointed decision-makers who are unfamiliar with your preferences. By executing a Durable Power of Attorney, Healthcare Proxy, and other incapacity planning documents, you can ensure that trusted individuals have the legal authority to act on your behalf without court intervention.
Choosing the Right Agents
When selecting individuals to act as your financial or healthcare agents, it is crucial to choose people who are trustworthy, responsible, and capable of handling complex decisions. Consider the following factors:
- Trustworthiness: Your agent should be someone you trust completely to act in your best interests.
- Financial Acumen: If appointing a financial agent, select someone who is comfortable managing money and making financial decisions.
- Willingness and Availability: Your agent should be willing and available to take on the responsibilities, which may require time and effort.
- Understanding of Your Wishes: The person you choose should have a clear understanding of your values and preferences regarding financial and medical decisions.
Periodic Review and Updates
Your incapacity planning documents should be reviewed and updated periodically to ensure they reflect your current wishes and circumstances. Life events such as marriage, divorce, birth of a child, or changes in relationships with appointed agents may necessitate revisions. Additionally, changes in state laws may require updates to your documents to ensure they remain legally valid.
How Can an Estate Planning Attorney Help Me with Incapacity Planning?
An experienced estate planning attorney can help you create a comprehensive incapacity plan tailored to your specific needs. They can guide you through the legal requirements in New Hampshire, ensure your documents comply with state law, and provide advice on selecting the right agents. Additionally, an attorney can help integrate incapacity planning into your broader estate plan, ensuring a smooth transition of assets and decision-making authority if needed.
Can We Help You with Incapacity Planning in Your New Hampshire Estate Plan?
For more information, please join us for an upcoming FREE seminar. If you have additional questions or concerns about incorporating incapacity planning into your New Hampshire estate plan, contact our estate planning attorneys in our North Andover, Woburn, and Beverly offices at (978) 969-0331. Our Salem and Nashua, New Hampshire office can be reached at (603) 894-4141.
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