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Planning for Incapacitation
Most people don’t realize that a will works just like a compass… only this compass is pointing your family toward the local county courthouse. And while you’re alive, your will is just sitting there, waiting for you to die so it can come alive. But before it can do that, it must be “proven” in court.

What does that mean for your family? It means they’ve got to hire a lawyer, pay court expenses, reveal private information to the public, and then drag through a waiting period – all due to the legal process known as probate. Translation? As some wag once said, “Attorneys are the unwritten beneficiaries of every will.”

But… what if you don’t die? What if you’re just happily walking through life and, one day, you have an accident, a stroke, or some other disabling injury or disease that leaves you alive but mentally incapacitated? You’re stuck in limbo, and so is your will! It can do nothing to help you deal with the possibility of being alive but unable to make decisions for yourself, your estate, or your health care.

On the other hand, maybe you’ll never face a catastrophic event that changes your life in an instant like a stroke can. But what if Alzheimer’s, or Parkinson’s, or dementia, or some other disabling disease robs you or your spouse of the ability to make decisions?

If this happens, you and your family will now face the very real possibility of hiring an attorney and going to court to establish a guardianship or conservatorship. In this legal proceeding, someone is appointed the decision-maker over your life, your health, and your wealth.

Hopefully, the court will choose the right person for you. You could live the rest of your life under what I refer to as “living probate.” You’ll be a ward of the court if you haven’t taken the proper legal precautions. All of your financial decision-making and health care will be subject to the review and control of a judge. Your family (and the attorney) will need to return to court from time to time to provide a financial accounting of every check that is written from that point forward.

For this reason, I often sarcastically say that a traditional estate plan could make you wish you were dead. In just a couple generations, there have been enormous changes in life expectancy, and there is a high probability that you or someone in your family will face long-term care or nursing home expenses. For this reason, I believe you can never really be sure if you’re safe unless you have an iron-clad estate and longevity plan.

Estate planning today must be more than just “death planning.” Your goal is to never be out of money and never out of quality health care options before you’re out of breath. You may also want to leave as much of your life’s savings as possible to your loved ones, with the least amount of taxation, delay, and excess cost.

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