Being prepared for the future unknowns is a critical aspect frequently overlooked. Every individual is at risk of becoming incapacitated, whether due to illness, an accident, or natural causes. Incapacity planning with your estate attorney is not only something you do for the benefit of others but will provide you peace of mind for the future.

How Do You Plan For Incapacity In North Carolina?

Suppose you don't plan for possible incapacity and you are in a serious accident, and your loved ones believe you are not able to manage your affairs. In that case, they will almost certainly have to petition the court for guardianship. The person appointed by the court would make necessary decisions on your behalf, but a guardianship proceeding has many disadvantages. 

  1. While the requirement for a guardian may be urgent, the process may take time.
  2. The court-appointed individual may not be the person you would have chosen had you been of sound mind. Additionally, family members may disagree on who should serve as your guardian. 

However, if you incorporate an incapacity planning component into your overall estate plan, you can make your own decisions in advance and avoid a guardianship proceeding. 

A living will is a type of advance directive that directs your family and healthcare team regarding the medical treatment you desire if you cannot communicate your wishes. A living will speaks for you if you become incapable of speaking for yourself. 

In addition to having a living will, North Carolina has three estate-planning documents to help you plan for incapacity:

  1. Health Care Power of Attorney
  2. Durable Power of Attorney
  3. Revocable Living Trust

In January 2018, North Carolina's laws regarding power of attorney changed into the Uniform Power of Attorney Act, clarifying ambiguous areas in the previous law.

Planning for incapacity with Carolina FEP

Long-Term Care Planning In North Carolina

Health Care Power of Attorney

A health care power of attorney is a document authorizing an agent to make medical and healthcare decisions on your behalf when you cannot do so, either due to incapacitation or an illness. The agent you choose will only be able to make those decisions after a mental health care provider or licensed physician determines that you cannot make them yourself. Furthermore, you can limit the types of decisions your agent will be able to make on your behalf.

Durable Power of Attorney

A durable power of attorney (POA) is like a healthcare POA, but you empower the named durable POA agent to make decisions regarding your property and finances rather than your medical care. The term "durable" means the POA will remain valid in the event of your incapacitation. The scope of a durable POA includes real estate transactions, personal affairs, taxes, financial transactions, Social Security benefits, and more.

Revocable Living Trust

A trust is an instrument that provides legal protection for your assets by taking them out of your name and placing them in the trust, a separate entity, of which you are the settlor or trustee. As long as you are able, you will control how those assets are distributed, and you will name a successor trustee to manage the trust upon your incapacitation or death. People frequently use trusts to avoid inheritance, estate taxes, or probate.

In contrast to an irrevocable trust, a revocable living trust is a trust that you can revoke (change or terminate) during your lifetime. That means you can make the same decisions now as before, but your assets are in the trust’s name rather than your own, which shelters them.

At Carolina Family Estate Planning, we help families build better lives by planning for a secure future. Our team takes an all-inclusive approach to our clients' long-term care and estate planning, including incapacity planning. We focus on building relationships with our clients, offering sound legal advice and expertise to help you make the best decisions for your family.

Our legal team will guide you with incapacity planning as part of your estate planning process and help you explore your legal and financial options regarding long-term care for you and your family.  

Contact us at Carolina Family Estate Planning now at 919-443-3035 in Cary, North Carolina, to schedule a needs-assessment call with our team of legal professionals or if you have any questions.

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The information in this blog post (post) is provided for general informational purposes only and may not reflect the current law in your jurisdiction. No information in this post should be construed as legal advice from the individual author or the law firm, nor is it intended to be a substitute for legal counsel on any subject matter. No reader of this post should act or refrain from acting based on any information included in or accessible through this post without seeking the appropriate legal or other professional advice on the particular facts and circumstances at issue from a lawyer licensed in the recipient’s state, country or other appropriate licensing jurisdiction.

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