Be sure to address incapacity in your Georgia estate plan

On behalf of J. Kevin Tharpe at J. Kevin Tharpe, P.C.

A complete estate plan must include provisions addressing incapacity.

When you think of estate planning, it is only natural to assume that it only involves wills and trusts. Although these documents are important, perhaps just as important are documents addressing the possibility of you becoming unable to make health care or financial decisions on your own due to a disease, disorder or injury. Fortunately, in Georgia, you can plan for such a contingency by executing an advance directive and power of attorney.

Advance directives

Advances in medicine have made it possible to survive accidents, diseases and injuries that would have killed our predecessors. However, this also means that many will be left alive using artificial means (i.e. life support machines), but unable to communicate their wishes. Since this is an undesirable outcome for many, especially if there is little hope of recovery, it is important to have an advance directive for health care in place to address this possibility.

In the advance directive for health care (ADHC), you have the option to direct the withdrawal of artificial life-sustaining procedures if you ever develop a terminal condition or persistent state of unconsciousness. A terminal condition is an irreversible condition that will likely cause you to die in a short period of time. "Persistent unconsciousness" is defined as an incurable state of being unaware of and unresponsive to your environment.

ADHCs also allow you to appoint a health care agent. Your agent is someone appointed by you to make health care decisions on your behalf and/or consent to or refuse medical treatment. Your agent has the power to make the same decisions regarding your medical treatment as you would if you were able. However, you may set limits on the scope of decisions that you allow your agent to make. When making decisions, your agent must consider any wishes you have expressed in the past, your beliefs and values, and what is expressed in the ADHC.

Of course, your agent's powers do not become effective right away-only in cases where you have developed a terminal condition or are in a persistent state of unconsciousness. As a result, your medical decisions made while you are competent are not affected by the ADHC.

Powers of attorney

If you are in a situation described above, your health care is not the only thing that needs looking after. Your finances need attention as well. To ensure that your financial affairs are taken care of, it is wise to include a durable power of attorney in your estate plan.

This document allows you to appoint an agent to see to your affairs in the event of your incapacity. Although you may set limits on your agent's powers, most powers of attorney allow the agent to pay taxes, manage investments, sign checks and handle routine financial transactions on your behalf.

Speak to an attorney

Failing to include these documents in your estate plan can cause headaches for your loved ones, in addition to making it unlikely that your wishes would be honored. An experienced estate planning attorney can ensure that your estate plan covers these and other undesirable outcomes, allowing your wishes to be carried out.