In one sense, you began your life incapacitated. To be sure, your mother did not see you as such. She gladly provided all the care you needed. Your mother did not get anyone’s permission to decide what you would eat or what time you would go to bed, though you probably voiced your preferences. Unable to provide your own food, clothing, or shelter you are alive because someone was there for you.
And the day finally came. On your 18th birthday you officially became an adult (at least in Texas). You decided that you were quite smart, and in fact, that you may have known everything. Upon entering adulthood, you eagerly deployed your wisdom on the myriad decisions you faced. More and more each day, you became increasingly independent.
Consider for a moment the possibility you may enter another season of life, one where you are becoming increasingly dependent with each passing day. Imagine a time during which you cannot alone substantially provide yourself with proper food, clothing, shelter, or healthcare, or manage your financial affairs. In such a state, the law will conclude you are incapacitated. This simple definition is quite complex in its application, or at least it can be. At what point does it become clear you are incapacitated? How do you protect yourself and ensure your preferences are carried out in day-to-day decisions?
For each of us, there may come a time we need someone’s help. That someone is either our self-appointed agent or a court-appointed guardian. Appointing an agent is the most efficient approach and is designed to avoid the court’s involvement. This is done when you sign financial and medical powers of attorney. Under these instruments, you are the principal, and your agent is the person you appoint to act on your behalf. Your financial agent can access your bank and brokerage accounts among other things, and your medical agent makes sure important medical decisions are made.
A complementary option to your financial power of attorney is for you to create a revocable trust and transfer your assets to the trust during your life. You can initially serve as your own trustee and when you cannot continue acting, your desired backup can step in and pay your bills and transact other business on your behalf. You may find it comforting to know that having an agent or a trustee does not limit your ability to act for yourself, so long as you are able.
What should you do to protect yourself in advance of these needs? Invest time in your family and friends so that you can thoughtfully consider who is most suited to act for you if you cannot act alone. Consider involving such person in your decision making while you are at full strength. This way he or she can have a running start to help you finish strong. And call on Farner & Perrin, LLP, to review your existing powers of attorney or to explore the use of a revocable “living” trust.