Contact Us for More Information

Planning for Incapacity

Posted by Paul D. Woodard | Feb 14, 2017 | 0 Comments

Shutterstock 506682679

In many ways, planning for incapacity is even more difficult than planning for death. Eventually, we all pass away; however, it may be unfathomable to consider a time when we may be alive, but unable to communicate our thoughts or wishes to those around us. Unfortunately, many people will become incapacitated before they pass away, leaving their health decisions in limbo unless they have proper life and estate plans in place.

Incapacity can mean the inability to make decisions for one's health care, or financial and personal affairs. Incapacity could come as the result of an injury or physical or mental illness. This includes traumatic brain injury, stroke, or degenerative diseases like Alzheimer's or Parkinson's.

The most important documents when planning for incapacity include an advance health care directive, durable power of attorney, and living trust. While a will provides for the disposition of your property after death, these other documents allow you to give clear and concise directions for your life at a time when you may be unable to communicate your desires and wishes. These types of decisions should be made at a time when you have the opportunity to think about who you trust to make decisions on your behalf and allows you to discuss these difficult topics with them.

An advance health care directive (AHCD), also known as a living will, allows an individual to appoint an agent to make health care decisions on their behalf. The directive can also set forth how an individual wants to be treated in certain conditions, including whether they consent or refuse consent to any care or treatment. It also sets forth clear instructions on resuscitation or providing artificial nutrition and hydration. A directive also provides for the individual to express their wishes in regards to organ donations.

A durable power of attorney (DPA) can be used to give broad power to another to make decisions on your behalf, or it can be narrowly tailored to limit decision-making to a single issue. Many people use a durable power of attorney to delegate financial decisions to another, such as paying bills. The agent designated could be an attorney, family member, or other adult the principal trusts to handle their money.

A revocable living trust allows an individual to transfer their assets to a trust, for their own benefit. This allows them to use their assets as they wish or designate during their life. A living trust can also provide for an alternate trustee in the event the individual becomes incapacitated.

All of these estate planning tools have certain benefits and drawbacks. It is important to understand the limitations of these documents before entering into them. You should speak with your experienced San Diego estate planning attorneys to help you decide which options might be right for you.

If you have any questions about estate planning or planning for incapacity, the San Diego law firm of Butterfield Schechter LLP is here to help. We will answer all your questions and make sure your estate plan will provide for your loved ones and keep your best interests at heart. Contact our office today with any questions on how we can help you and your family plan for the future.

About the Author

Paul D. Woodard

Paul Woodard practices in the areas of Employee Benefits, Employee Stock Ownership Plans, Pension and Profit Sharing Plans, ERISA, ERISA Litigation, Business Law, Qualified Domestic Relations Orders (QDROs), and Estate Planning.


There are no comments for this post. Be the first and Add your Comment below.

Leave a Comment

Retirement Plans

We help establish a customized plan that meets regulatory requirements as a tax qualified plan. Following implementation, our attorneys can assist clients and their plan administrator with regular reviews and updates to help with regulatory compliance for the plan's operation, and continued effectiveness in meeting the client's specific goals.


We are dedicated to employee ownership. When you come to us for ESOP services, you receive influential legal counsel who stand beside you to help you stay informed, in compliance, and abreast of the latest developments-all to help you realize your plan goals as fully and effectively as possible.


A QDRO is a specially designed court order that is required for the division of retirement benefits in a family law case. Many family law attorneys do not possess the expertise necessary to divide retirement benefits or stock options upon divorce. We have extensive experience in dividing qualified plans, government plans, IRAs and stock options between the employee spouse and non-employee spouse.

Butterfield Schechter LLP provides the information in this website as a service to its clients and visitors to the site. This website is for information purposes only and is not intended to create, and receipt of it does not constitute, an attorney-client relationship. The information in this website is provided "as is," and while the information in this website is updated periodically, additional facts or future developments may affect subjects contained herein, and no guarantee is given that the information provided is correct, complete, or up-to-date. Seek the advice of professional counsel before acting or relying upon any article, form, or information in this web site. To ensure compliance with the requirements imposed by the United States Treasury and the Internal Revenue Service, we inform you that any federal tax advice contained in this communication is not intended or written to be used, and cannot be used, for the purpose of: (1) avoiding penalties under the Internal Revenue Code or (2) promoting, marketing, or recommending to another person any transaction or matter addressed herein. Butterfield Schechter LLP has endeavored to comply with all known legal and ethical requirements in compiling this website. In the event that this communication does not conform with any laws or regulations of any state or country in which it may be received, Butterfield Schechter LLP will not accept legal representation based on this communication from a person in such a state or country. Electronic mail is provided as a convenience in communicating with the attorneys at Butterfield Schechter LLP. Contact by e-mail does not alone create an attorney-client relationship. Please remember Internet e-mail is not secure and messages sent to the firm or any of its employees or attorneys should not contain sensitive or confidential information. Thank you for visiting our site.