Incapacity planning refers to the legal arrangements you make to specify how your affairs will be handled if you become mentally incapable. Because this takes effect during your lifetime in the event that you cannot manage your affairs due to mental incapacity, incapacity planning deals with both your “person” (your personal care and health care), and your “estate” (your legal and financial affairs).
The main incapacity planning tools are the Enduring Power of Attorney and the Enhanced Representation Agreement.
- An Enduring Power of Attorney is the legal document where you someone is appointed (called an “attorney”) to manage and make decisions on an individual’s behalf regarding their legal and financial affairs. While a non-enduring power of attorney terminates if they become mentally incapacitated, an enduring power of attorney continues to have effect even during their mental incapacity. To be an effective incapacity planning tool, a power of attorney must be “enduring” and must comply with the requirements for enduring powers of attorney. Under enduring power of attorney, an individualcan specify that their attorney has the power to use their assets to support their , if any.
- An Enhanced Representation Agreement for personal care and health care is the legal document whereby an individual appoints someone (called a “representative”) to manage and make decisions on their behalf regarding both personal care and health care. This can include things like major and minor health care, where someone will live and work,
- What activities a person will participate in, and with whom they will associate. A Representation Agreement is useful to ensure that an appointed representative can make sure that one’s wishes regarding personal care and health care are respected in the event that they become mentally incapable and are no longer able to communicate their wishes.
As there are certain requirements that must be met in order to make these documents valid (including the execution of such documents), we recommend always obtaining legal advice when undertaking incapacity planning.
Planning For The Future, Providing For Loved Ones
Estate and incapacity planning is unique to each individual and family. While legal mechanisms exist to reach certain objectives, their use must be tailored to each client’s needs.
- Estate planning: The firm’s estate lawyers discuss the most appropriate estate plan for each client, including the inclusion of assets within a will and the preparation of trusts. Firm counsel work closely with the client’s accountant with regards to complex financial issues.
- Family trusts: As part of estate planning, the firm’s lawyers may recommend a family trust in order to provide for business succession planning.
- Incapacity planning: Firm counsel discuss with clients the options they have to plan for a time when they lack the mental capacity to make their own financial, legal, medical or personal care decisions. The firm provides advice on assigning an enduring power of attorney, and our counsel will draft this document in consultation with the client.
When an individual has reached a state of incapacity and no power of attorney or guardian has been assigned, the firm represents family members in the application for committeeship.
PLLR Lawyers features an experienced team of estate lawyers dedicated to providing personal service to clients on estate planning and capacity issues. In-depth knowledge and understanding of clients’ needs and objectives lead to practical, effective advice.