Creating a comprehensive estate plan is one of the best gifts you can give to your loved ones and to yourself. Estate planning, however, should include much more than just deciding how your assets will be handled after you are gone. One of the most common additions to the average estate plan is an incapacity planning component. It is always best to work closely with an experienced estate planning attorney when creating an estate plan. With that in mind, the estate planning attorneys at Nash Bean Ford & Brown, LLP offer some incapacity planning tips.
- Do not put off incapacity planning. The most common mistake people make with regard to incapacity planning is failing to plan. This is often because when people think of incapacity they tend to envision someone who is elderly and suffering from Alzheimer’s, or a related condition. While conditions such as Alzheimer’s certainly can cause incapacity, the reality is that incapacity can strike anyone at any time. In fact, you stand a one in five chance of suffering a period of disability that lasts at least five months prior to reaching retirement age. Add in the possibility of a tragic accident or debilitating illness and the possibility of incapacity increases dramatically.
- Ask yourself some difficult “what ifs.” No one likes to envision their own death or incapacity for obvious reasons; however, failing to consider the possibility can have unwanted consequences. For just a moment, assume that you were in a car accident that left you incapacitated tomorrow. Now ask yourself the following questions:
- Who would end up with control over your assets and financial accounts?
- Who would make personal decisions for you, such as where you lived during your incapacity or what doctor treated you?
- Who would make decisions about your medical treatment if important decisions needed to be made?
- Are your wishes regarding end of life medical treatment known? If so, how can you be certain those wishes will be honored?
- Consider creating a revocable living trust. A revocable living trust is a very commonly used incapacity planning tool for several reasons. It works like this: As the Settlor of the trust, you name yourself as the Trustee and name someone you wish to take over control of your assets in the event of your incapacity as the Successor Trustee. Assets are then transferred into the trust. Because it is a revocable trust, assets can easily be transferred in and out as needed. As the Trustee, you control those assets as long as you are capable of doing so; however, if you become incapacitated, control over the trust assets automatically shifts to the Successor Trustee without the need for court intervention.
- Learn more about advance directives. If you have strong views on end of life medical treatment, and/or you want to be sure that someone of your choosing makes medical decisions for you if you cannot make them yourself, you should execute an Illinois Advance Directive. The State of Illinois recognized both an Illinois Statutory Short Form Power of Attorney for Health Care and a Living Will. The former allows you to appoint someone as your Agent to make decisions regarding treatment for you and the latter lets you decide ahead of time what type of end of life treatment you want or do not want to accept.
- Remember to update your incapacity plan. Almost as important as creating your incapacity plan in the first place is remembering to review and revise it as necessary. It should be updated as a matter of routine every three to five years along with your estate plan; however, life events may call for a more immediate revision. For example, if you named a spouse as your Successor Trustee in a trust and/or your Agent in an Advanced Directive, and you recently decided to pursue a divorce, you will need to revise those incapacity planning tools accordingly.
Contact Illinois Estate Planning Attorneys
If you have questions or concerns regarding incapacity planning in the State of Illinois, contact the experienced estate planning attorneys at Nash Bean Ford & Brown, LLP by calling 309-944-2188 to schedule your appointment today.
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