Planning for Incapacity: Helping Clients Prepare for Potential Future Health Crises



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Estate Planning and Community Property Law Journal


It is prudent for all people to plan for incapacity. As individuals plan, they will turn to their lawyers—or estate planners and personal financial planners—to help them. This article examines various ways in which these professionals can help their clients prepare for potential health crises or accidents that lead to disability or incapacity. As an initial matter, Part I of the article notes that planning for incapacity involves planning along two “management tracks”—property management and healthcare management. Various tools available to legal practitioners, estate planners, and personal financial planners populate these tracks. Part II of this article will discuss the property management track and the tools therein—the Revocable Living Trust and the Durable Power of Attorney. Part III will discuss the healthcare management tracks and the tools contained therein—the Directive to Physicians, Family, and Surrogate, Medical Power of Attorney, and Out-of-Hospital Do-Not-Resuscitate (OOH DNR) Orders. Part IV will discuss a Texas tool that effectively straddles both tracks: the Declaration of Guardian. Part V, the conclusion, will summarize the tools and tracks discussed in the article and will urge the reader to lead adult clients—regardless of their age—to begin the process of planning for incapacity.



Planning for incapacity, Property management, Durable power of attorney, Revocable living trust, Directive to physicians, family, and surrogate, Medical power of attorney, Out of hospital do no resuscitate orders, Living will, Declaration of guardian, Estate planning


9 Est. Plan. & Cmty. Prop. L. J. 227