Preparing for Incapacity

Incapacity planning is a broad area of law that covers how you are cared for if you become physically or mentally unable to care for yourself. The type of care could range from simple tasks like buying groceries, paying bills, and handling financial matters to more important decisions such as selling real estate or gifting assets to your children.

Within the realm of incapacity planning, there are also arrangements that deal specifically with decisions regarding steps taken to obtain Medicaid benefits. A Trust with "Medicaid triggers" comes into play in this regard by moving forward with decisions that you would have handled yourself, if you were still legally competent to do so. The types of decisions required in this area of planning can vary. For instance, you may outline instructions for a nursing home stay or the repositioning of assets to allow you to qualify for Medicaid without completely extinguishing the value of your estate.

At a minimum a good set powers of attorney, one for property usually referred to as a Durable Property Power and a power of attorney for healthcare decisions are essential to preventing delays in treatment and protecting your assets while you are alive. These "living" documents protect you from guardianship and conservatorship, a "living probate".

Wills only take effect at death and therefore don't do you much good if you are alive but incapacitated.

Along with these there are a variety of more specialized documents you can put in place to run a business, manage property, handle specific assets or take on other responsibilities you have. But at least with the minimum you have some basic protection.


When you determine that you want to move forward with this type of planning, it is necessary to work with a qualified estate planning attorney. This attorney will find the optimal solutions for you in the event of your legal incapacity (defined as the inability to manage your own affairs). Because there is a 50-50 chance that the average adult will spend at least one year in a long-term care facility, it becomes painfully clear this type of planning is not only extremely important, but requires immediate attention to ensure you and your family protect your assets