Most people are familiar with “estate planning” in a general sense, in the context of having a plan in place for when an individual dies. But estate planning is also important in preparing for other life situations, such as what to do if a loved one should become mentally incapacitated.
Mental incapacity may be the result of an illness, injury, dementia, stroke, heart attack, or an accident. The incapacity may be temporary or permanent. Basically, it refers to the inability to do one or more of the following:
Having a Last Will and Testament will not address this situation; a Will only provides instructions for how things should be handled after one’s death.
If an individual becomes mentally incapacitated and does not have a comprehensive incapacity plan, the courts will control how the assets are used to care for that individual until they recover from the incapacity or until they die. The court will designate someone to assume control of the incapacitated person’s assets and make medical and personal decisions on that person’s behalf. This legal process is known as guardianship or conservatorship.
It is a common misconception that an individual and their assets are protected if they become mentally incapacitated because they have their assets in joint names. Only an incapacity plan provides this protection. Having joint accounts only allows the account holder to access that account to pay bills or manage investments. However, if property is held jointly, it cannot be mortgaged or sold without the consent of all the owners.
A power of attorney is a legal document that grants someone of your choosing the power to act on your behalf. Ordinary powers of attorney end if the individual becomes mentally incapacitated. It is important to have a durable power of attorney, which will remain in effect in circumstances of mental incapacitation.
A financial power of attorney is a legal document that provides an individual with the authority to address financial matters such as paying bills, managing investments, making financial decisions, filing tax returns, and selling real estate.
Waiting to address estate planning and incapacity planning is a mistake. Life circumstances can change rapidly without notice and the consequences of not being prepared with an appropriate incapacity plan are costly. At Kitroser, Lewis & Mighdoll, our Palm Beach estate planning lawyers understand decisions related to estate planning can be difficult. With nearly 100 years of combined estate planning experience, we develop incapacity and estate plans to reflect your goals and address your concerns. Call our office today to schedule a consultation at 561-721-0600 or contact us online.
The North Palm Beach Estate Planning Lawyers of Kitroser, Lewis & Mighdoll, welcome clients from the cities of West Palm Beach, Stuart, Palm Beach Gardens, Palm Beach, Jupiter, Tequesta, Juno Beach, Singer Island, Lake Park, Hobe Sound, Royal Palm Beach, Wellington, Lake Worth, as well as all of Palm Beach County, Martin County and South Florida.
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