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By John R. Merlino Jr. Esq.
Founding Attorney

Q: Why should people plan for incapacity?

New York and New Jersey estate planning attorneys not only prepare people’s wills, but draft several other documents that together make up a comprehensive estate plan.

What documents are needed when planning for incapacity?

Planning for incapacity is essential in estate planning, regardless of age or health. Not to frighten you, but the stark reality is that tragedy can strike anyone at any moment. Common documents that plan for incapacity include:

  • a durable power of attorney for financial affairs
  • durable power of attorney for medical decisions/health care proxy
  • a living will noting preferred medical treatment for end-of-life decisions
  • HIPAA authorization (Health Insurance Portability and Accountability Act) allowing the release of your medical information to your agents

What is the difference between having a durable power of attorney and needing a guardianship?

If you become incapacitated because of an illness, injury, or accident, the agent you appointed in a durable power of attorney can immediately step in to make your financial and/or medical decisions.

Without a durable power of attorney, your loved ones would have to petition the court for guardianship asking to be appointed to take over your medical financial and other care. Not only is the guardianship process time-consuming, but it may also cost thousands of dollars in legal fees and can be emotionally draining to your family members – especially if they are fighting over who should be appointed. The judge will choose who will make these decisions for you, instead of you deciding on the person, and they can even appoint a stranger.

Recently, a judge in Texas made the news when her adult sons petitioned for guardianship over her. Reportedly, the judge continued to work despite rapidly progressing Alzheimer’s disease. The guardianship proceeding pits the sons against their father with respect to control of her multimillion-dollar estate and her health care decisions.

If you need assistance with an initial estate plan or would like to modify an existing one, the estate planning experts at Merlino & Gonzalez can help you. Contact us today to schedule a consultation.

From our offices in Staten Island, New York, and East Brunswick, New Jersey, we represent clients in both states in all aspects of estate planning and estate administration.

About the Author
John is a fierce advocate and the office guru for problem-solving and brainstorming. He guides clients through every stage of a real estate transaction from offer to contract, navigating through nerve-shattering home inspection and title clearance concerns, maintaining constant contact with lenders, conducting the actual closing, and continuing to advise clients with regard to any post-closing concerns.  John brings a practical and fair-minded approach to the process which has earned him the respect of his clients and peers.