What To Know About Incapacity Planning in Georgia

Planning for incapacity is an essential part of estate planning in Georgia. Specific documents in your estate plan protect you and your loved ones in the event you become unable to make personal, medical, or financial decisions for yourself temporarily or permanently. By designating someone you trust to make important decisions for you when you cannot make them yourself, you avoid the need for your loved ones to initiate court proceedings for guardianship or conservatorship.

Understanding Incapacity

In your daily life, you make important decisions about personal matters, health care and medical issues, and your finances. But what happens if you have an accident, medical emergency, sudden illness, or progressive condition that prevents you from making those crucial decisions? Under Georgia law, no one can make those decisions for you unless: 1) You take the proper steps to designate a trusted person to make the decisions if you are not able to make them, or 2) a Georgia court appoints a guardian or conservator to make the decisions for you.

To avoid court proceedings, designating a trustworthy person to make your decisions in the event of incapacity requires creating specific legal documents recognized by Georgia law. Each document has statutory requirements that must be met for the document to be valid. Creating these documents is an essential part of estate planning in Georgia.

If you do not have these documents in place in advance, and you become incapacitated, your loved ones must initiate guardianship or conservatorship proceedings to have a court appoint a person to make decisions on your behalf. These proceedings are cumbersome, time-consuming, costly, and can be very disruptive in a family.

According to general statistics, becoming disabled or incapacitated is a more likely event than dying. That makes planning for incapacity just as important as planning for distribution of your estate after your death. It is the reason that incapacity planning is an essential part of estate planning.

Incapacity Planning Legal Documents

In planning for incapacity, financial matters and health care matters are addressed by separate documents. There are important reasons for the distinction, including the fact that it may be advisable to appoint a different person for each type of responsibility, so that the person you designate has the necessary knowledge and understanding to make decisions on your behalf and fulfill the fiduciary duties that accompany the designation.

Durable Power of Attorney for Financial Matters

A durable power of attorney for financial matters is a legal document in which you designate a person to manage your finances and make financial decisions on your behalf if you become incapacitated and cannot manage your finances yourself. The durable character of the document refers to the fact that it is effective after incapacity.

This document authorizes a trusted person you chose to pay your bills, manage bank accounts, and handle other essential financial matters. You may specify in the document exactly what authority your agent under durable power of attorney will have. All powers of attorney (POAs) must comply with specific statutory provisions to be valid.

If an estate plan includes a living (inter vivos) trust, the terms of the trust may authorize a successor trustee to act on the grantor’s behalf in the event of incapacity. In that case, the trust may take the place of a durable power of attorney for financial matters. At Asset Protection & Elder Law of Georgia, we help clients determine the most beneficial structure for an estate plan, including whether a trust is the best approach to providing management of finances in the event of incapacity.

For a small business owner in particular, a durable power of attorney for financial matters is extremely important. If the business owner is unable to manage business financial matters even temporarily due to an accident or illness, the business may come to a complete halt if no one else is legally authorized to make those decisions. Getting a court to appoint someone to run the business takes valuable time and consumes financial resources. When a small business owner has the right documents in their estate plan, those serious (and expensive) problems can be completely avoided.

Advance Directive

Georgia law recognizes documents referred to as an advance directive for designating an individual to make personal and health care (medical) decisions on your behalf in the event of incapacity. The primary part of an advance directive is a durable power of attorney for health care. Similar to the POA for financial matters, this document authorizes a person you trust to make personal and health care decisions on your behalf in the event of incapacity. Your advance directive may also include an expression of your wishes, intentions, and instructions concerning specific types of health and medical care.

A living will may be part of an advance directive as well. A living will is totally unrelated to the last will and testament that is part of your estate plan. Under Georgia law, a living will is a document that expresses your wishes concerning life sustaining or death delaying procedures in certain limited circumstances, such as a terminal illness or a coma or a persistent vegetative state with no reasonable expectation of recovery. A living will applies only to end-of-life decisions. In contrast, a durable power of attorney for health care may apply to a broader range of situations in which medical care decisions are necessary.

Other documents relating to health care matters, such as a HIPAA authorization for access to medical records and a do-not-resuscitate (DNR) order may also be part of your advance directive.

Importance of Legal Guidance

While Georgia laws do not require you to have a lawyer to create documents to protect you in the event of incapacity, talking with an experienced estate planning attorney is strongly recommended as the best approach to making an estate plan that includes incapacity documents, because of all the specific legal requirements that apply to the documents and to meeting the requirements for proper execution. Your lawyer also helps you understand the meaning of all the provisions in the documents, which can often be very confusing.

Talk With Us About Incapacity Planning

In our Cartersville estate planning practice at Asset Protection & Elder Law of Georgia, planning for incapacity is an important part of services. We serve clients throughout the communities northwest of Atlanta, including in Bartow County, Cobb County, Cherokee County, Gordon County, Floyd County and Paulding County. Call us at (770) 382-0984 or contact us through our online form to schedule a consultation.