INCAPACITY PLANNING – Part I
By: Laurie Valentine- COO & Trust Counsel
Estate planning is an important part of every Christian’s stewardship responsibilities. A Christian estate plan is one that you develop by determining God’s will for (1) how your assets should be distributed at your death and (2) how your affairs would be managed in the event you become incapacitated during your lifetime.
This lesson focuses on what you need to do to assure that someone of your choosing is properly authorized and empowered to manage your affairs if you can no longer do that for yourself.
Scripture References: II Kings 20:1b; Proverbs 13:10, 15:22; I Timothy 5:8.
Please read these passages in your Bible now.
What is “incapacity planning”?
Incapacity planning is planning that assures your affairs would be managed and decisions could be made for you if you became incapacitated and unable to do those things for yourself by someone of your choosing. It allows you to plan now for the possibility that some future physical or mental incapacity may render you unable to manage your own affairs.
This type of planning allows you to decide who will manage your finances and make decisions for you, how that person (or persons) will be empowered to act for you and what kinds of decisions should be made for you, if you cannot speak for yourself.
Documents used to accomplish incapacity planning include: durable powers of attorney, living will directives, healthcare surrogate designations and revocable living trusts.
What is a durable power of attorney?
A durable power of attorney is a document through which you can authorize and empower someone of your choosing to manage your financial affairs and make personal decisions for you if you become incapacitated. It is a “durable” power of attorney if the document states “this power of attorney shall not be affected by the disability of the principal” or “this power of attorney shall become effective upon the disability of the principal” or similar words to show that it is your intent that the powers your are granting will be exercisable even if you are incapacitated.
The person empowered to act under a durable power of attorney is known as your “attorney-in-fact.” Kentucky law permits you to name any person 18 years of age or older to serve as your attorney-in-fact. You are not limited to your spouse or certain other relatives. You are also not limited to naming only Kentucky residents.
Your attorney-in-fact must act as your agent—they can only do what you empower them to do under the power of attorney document. While their activities on your behalf and with your assets must benefit you, your attorney-in-fact is not required to account to anyone or report their actions to anyone. Therefore, in deciding to whom to give a durable power of attorney, you should choose someone whom you trust to manage your finances and make decisions as you would yourself.
Consideration should be given to naming a first choice and an alternate choice for your attorney-in-fact. This better assures that you have long-term incapacity planning in place. If your first choice dies or become incapacitated, someone else is already empowered in the document to take over.
Financial management powers that may be granted include the power to make withdrawals and deposits from your bank accounts, collect monies due you, enter into your safe deposit box, sell your stocks, bonds and mutual fund shares, invest the proceeds from the sale of any assets, deal with any real estate you may own, sign your income tax return, apply for benefits to which you may be entitled and to make gifts.
Personal decision-making powers that can be granted to your attorney-in-fact include the power to make health care decisions for you, to discontinue life-prolonging medical treatment, to obtain and disclose private health information, and the authority to determine where you will live if you cannot make that decision yourself.
It is best to include a detailed list of powers in the durable power of attorney, rather than just saying your attorney-in-fact is authorized to do anything that you could do yourself. Including a detailed set of powers makes it clear exactly what powers you are granting and, in some cases, if the power is not expressly granted in the document your attorney-in-fact will not be authorized to take that action.
Prayer Focus: Take a moment now to pray for God to guide you in your planning as to how your personal and financial affairs will be managed if you become incapacitated.
Next Week: Incapacity Planning – Part II
The information in this article is provided as general information and is not intended as legal or tax advice. For advice and assistance in specific cases, you should seek the advice of an attorney or other professional adviser.