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Planning for incapacity: Two documents everyone should have

For many Americans, it's hard to make estate planning a priority. We're so busy thinking about the here and now that we don't stop to consider the uncertainties of the future.

But estate planning serves a valuable function beyond just deciding how to divvy up your property. It also allows you to document your wishes in the event that you become unable to speak for yourself. Who will be your voice if you suffer from an illness, injury or accident that leaves you incapacitated?

Through two important documents, you can be prepared for this possibility.

1. Durable power of attorney

A power of attorney grants someone else the legal authority to act on your behalf. This power is especially important for handling property and finance matters such as:

  • --Accessing bank accounts
  • --Transferring real estate
  • --Signing documents on your behalf

When carefully drafted, this power won't take effect unless you become incapacitated (as certified by a physician).

2. Advance health care directive

What about your wishes regarding medical care and end-of-life decisions? Through an advance health care directive, you can provide clear guidance so your family won't have to guess at what you wanted.

This directive actually involves two parts:

  • --The declaration of living will sets out your preferences on medical care. For example, you can specify whether you would want life support measures to continue if there was no reasonable chance of recovery.
  • --The designation of health care surrogate appoints a trusted person to make medical decisions on your behalf if you become incapacitated.

Why you should have these documents in place

Without an advance health care directive and durable power of attorney, you risk burdening your family members with difficult decisions. Such emotional situations are often ripe for heated family disputes.

These documents, when properly structured, can also avoid guardianship proceedings. Instead of letting a judge determine who should have the authority to act on your behalf, you can make that decision yourself, while you still have the capacity to do so.

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