Whenever we think about incapacity or incompetency, our tendency is to think of the worst disaster we can conjure up in our minds, such as a medical emergency that leaves someone in a hospital for a prolonged recovery or the sudden loss of a person’s mental faculties that requires in-home or long-term care. These are the typical disasters that pop into our heads. We do not think about the more mundane—but no less important—aspects of incapacity. Can my spouse sign for the both of us when I am unavailable to sign? Can a trusted friend assist with a local Minnesota bank transaction while wintering in Arizona? Can a parent still look after a child’s finances after that child has just turned 18?

Often, the disasters that we play out in our heads about incapacity are the ones that are the least likely to happen. The fact is: adults at any stage of life can make a sound plan that takes their own life circumstances into account. But to effectively make those plans, we have to know what incapacity planning is. Typically, incapacity planning includes a Health Care Directive and a Power of Attorney document. Health Care Directives authorize someone (called an “agent”) to make medical decisions on behalf of the person signing the Health Care Directive. These documents can include simple or complex instructions to the agent about what decisions should be made for different diagnoses and prognoses. But a Health Care Directive authorizes the agent to do more than make health care decisions. An agent can helpfully obtain medical records to inform new attending physicians of important past medical history. The Health Care Directive can even provide legal authority for the agent in a healthcare setting, allowing the agent to sign waivers or releases as needed. The abilities of an agent are useful at any time, even for relatively non-life threatening medical health problems, like surgeries that require general or local anesthesia or temporary mental health concerns. Health Care Directives help you make decisions in advance, making sure that you are the decision-maker even when you could not make the decision otherwise.

Powers of Attorney authorize someone (called an “attorney-in-fact,” which is not the same thing as an “attorney-at-law” or lawyer) to make financial decisions on behalf of the person signing the Power of Attorney document. Most people think that a Power of Attorney will give complete control to someone else, which can be a daunting proposition. But Powers of Attorney may be limited in scope, only authorizing certain types of transactions for a limited time. Powers of Attorney may last through incapacity (known as “durable”) or become effective only at the moment of incapacity (known as “springing”). Powers of Attorney can be fine-tuned for any occasion. For example, if a new high school graduate wants to still rely on her parents’ financial know-how and assistance while she heads to college or a new job, she can ask her parents to assist in limited ways by using a Power of Attorney. She can ask her parents to assist at her bank or with selling old personal property that she left at home.

For adults with minor children, there are additional steps to plan around incapacity. Many will be familiar with nominating a guardian to look after minor children in a Will, but Minnesota law allows a temporary delegation of custodial powers by a parent or legal guardian to another person. This can be useful in the event that parents decide to go on a vacation together and need an extended family member to look after their minor child(ren). These types of situations are not medical emergencies or unexpected crises; these events are just the normal course of life. Incapacity does not have to be dire doom and gloom. In fact, the most useful aspects of incapacity planning are usually just to make our lives more simple and stress-free, knowing that we have someone we trust to look out for us in the event some unlikely tragedy does befall us.

Even in those more urgent circumstances, the goal is not to focus on the morose. The goal is to focus on preserving your own self-determination. The decisions we make when preparing documents; the instructions we give to our agent; those are the things that will be carried forward. People focus far too often on the potential loss of their decision-making capabilities. Instead, we should focus on the fact that we get to maintain our autonomy by giving guidance to others acting in our best interests.

To help you think through these topics, rely on Estate Planning and Elder Law Attorneys at Henningson & Snoxell. An attorney has the legal know-how to complete these documents legally and properly. For any topics that may require advance planning, a lawyer can advise the client about the best way to navigate future occurrences. Each and every client will have a unique perspective, and Henningson & Snoxell’s attorneys will take your circumstances into account when advising you. Contact Henningson & Snoxell for an appointment today!

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