Importance of Incapacity Planning

by Sofia Wolinski, Legal Assistant Treveri Law, PC


Incapacity planning is the process through which you will create a plan for what happens in the event that you become mentally or physically incapacitated and are no longer able to make decisions for yourself. Planning ahead for incapacity allows you to create a plan of action now, while you have full capacity, that addresses what will happen if you cannot make decisions in the future. The main parts of incapacity planning are outlined below. The most essential part for parents of minors is the guardianship section.


Durable Statutory Power of Attorney: This document allows you to name your own future decision makers relating to legal, tax and financial decisions if you become incapacitated. This document will be tied to a Digital Asset Access Authorization which will allow for your Agents to access your cryptocurrency, digital media, passwords and social media accounts.

Durable Health Care Power of Attorney: This document allows you to name your own future decision-makers relating to medical, mental health and end-of-life decisions if you become incapacitated. This document is paired with a HIPAA authorization which allows your nominated agents to collect your medical records. In your Living Will, you can specify your desires with regard to end of life decisions, use of life-sustaining treatments, pain relief and palliative care, the types of organ donations including donation of your


body as a cadaver, and the ap


plication of other medical procedures including the refusal of invasive artificial nutrition and hydration. Living Trust: In a living trust, also known as a “Revocable” trust, you decide who will serve as your successor trustee in case of your incapacity. This trustee would work with your appointed Financial Power of Attorney to manage your financial assets that are not in Trust. The Trustee will have the exclusive authority to manage all your tax, legal and financial matters relating to your assets in the Trust. Your Trustee and Agent will be required to manage your assets for you during your lifetime as instructed and to hold and manage assets for your minor children or special needs heirs, to distribute directly to your heirs – while still protecting them from divorce, bankruptcy and lawsuit proceedings, if necessary, after your passing.

Guardianship: If you are a parent of a minor naming potential temporary and permanent guardians is crucial. If there is an emergency such as a car accident when your child is with you, having Temporary Guardianship documents and an Incase of Emergency card in your wallet will mean that your child will not need to be placed into temporary foster care or even juvenile detention. Without nominations, your child’s family members would need to petition the NM Children Youth and Families Department and the District Court to ap


point a guardian. These proceedings are time-consuming, expensive and could cause long-term psychological trauma to your child.

Everyone should have an incapacity plan. Even if you are young and healthy, an accident or illness could leave you temporarily or even permanently incapacitated. Incapacity planning will ensure your assets, your children, and your self will be protected.

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