Planning for Incapacity in Arizona
When you think about estate planning, you probably focus on the distribution of your estate after your death. But planning for incapacity is an equally important part of putting a complete estate plan in place. This aspect of estate planning protects you, your loved ones, and your estate during your lifetime in the event you become incapacitated and cannot make your own decisions. It is an essential part of estate planning.
What Is Incapacity in the Estate Planning Context?
Title 14 of the Arizona Revised Statutes, which addresses Trusts, Estates and Protective Proceedings, includes a detailed definition of incapacity at ARS 14-5101(3). It provides that an incapacitated person is someone “is impaired by reason of mental illness, mental deficiency, mental disorder, physical illness or disability, chronic use of drugs, chronic intoxication or other cause, except minority, to the extent that he lacks sufficient understanding or capacity to make or communicate responsible decisions concerning his person.”
A person who becomes incapacitated under this definition is unable to make or communicate important decisions, including those relating to finances, health care, and other critical matters that affect their personal well-being. Specific legal steps must be taken before someone else can have that authority.
To address this potential issue, certain documents in your estate plan enable you to designate trusted, responsible, and reliable individuals to make decisions on your behalf, if you become incapacitated during your life, temporarily or permanently. Planning for incapacity is something that everyone must do. It is not only for seniors or elders who may face a greater likelihood of incapacity as they age. Incapacity through an accident, injury, or a serious medical condition can occur at any age. Your incapacity documents protect you no matter when it happens or what the cause of the incapacity is.
What Happens If You Don’t Plan for Incapacity?
If you don’t put the right documents in place for incapacity, a court decides who makes decisions on your behalf by appointing a guardian or conservator. Your loved ones must petition the court. The court may choose someone you would not want to make your decisions. There may be family disagreements about who should make the decisions or what your wishes would be. The process is time-consuming, complicated, expensive, and emotionally stressful. It happens at a time when even one day with no one able to make decisions can make the difference in your physical and medical well-being.
What Documents in an Estate Plan Address Potential Incapacity?
There is a set of documents in an Arizona estate plan that address potential incapacity. They are powers of attorney that are durable, which means they remain active if you become incapacitated. Without the designation as durable, a power of attorney expires if the principal becomes incapacitated. They include:
- Durable financial power of attorney
- Durable health care (or medical) power of attorney
- Durable mental health care power of attorney
- Living will for end-of-life decisions
The first document is a durable financial power of attorney, in which you designate a person as your agent (also sometimes called an attorney-in-fact) to manage your financial matters if you become unable to manage them yourself. The person is a fiduciary, with a high level of duties under Arizona laws. The document specifies exactly what authority and powers your financial agent has. Typically, a durable power of attorney authorizes the designated person to pay your bills, transfer funds into and out of bank and financial accounts, and make other financial decisions. The trusted person you designate should have financial knowledge and the ability to manage your financial matters.
The remaining documents are part of what is called an advance directive or health care directive (and may also be referred to as a health care proxy or surrogate). The first advance directive document is a durable health care power of attorney, which may be called a durable medical power of attorney. In this document, you designate a trusted person to make health care and medical decisions on your behalf. The person you choose should be able to understand medical issues and your own wishes, and be able to make difficult decisions under stressful circumstances. Your named designee in this document may or may not be the same person you authorize to manage your finances.
Arizona has a separate document for mental health decisions, called a durable mental health care power of attorney. The person named in this document makes mental health decisions on your behalf.
You may also choose to have a living will. This document is totally unrelated to the will (last will and testament) in your estate plan. A living will expresses your wishes concerning end-of-life care, including medical care for a terminal condition, irreversible coma, or persistent vegetative state, and designates a person to carry out your wishes. Executing a living will enables you to clearly state your medical care choices, so everyone involved in treatment knows your wishes regarding medical care at the end of your life, if you become unable to communicate or express those wishes.
Do You Need a Lawyer to Make Incapacity Documents?
While Arizona law does not require you to be represented by a lawyer to create documents addressing potential incapacity, it is not a good idea to try to create them on your own, which is true for all estate planning documents. The documents that plan for incapacity all have specific legal requirements under Arizona law. An experienced estate planning lawyer makes certain that your documents meet all the legal requirements, and ensures that the documents state your specific wishes for each set of circumstances and that you understand all the terms of each one. If you don’t get help from a knowledgeable attorney for estate planning documents, you can create invalid documents and serious future problems for your loved ones.
Schedule a Free Consultation With an Experienced East Valley Estate Planning Attorney
At Peterson Law Offices, estate planning — including planning for incapacity — is a primary focus of our practice. We provide top-quality services at affordable prices. If you don’t have an estate plan, we help you put one in place that fully addresses your goals and circumstances. If you already have an estate plan, we can help with updating your plan to make sure it is current and complete.
We welcome inquiries from clients throughout the East Valley, including Queen Creek, San Tan Valley, Gilbert, Mesa, and Chandler. Schedule your free initial consultation by calling 480-878-5998 or using our online contact form.
