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Incapacity Planning: Saving Future Grief for You & Your Family

On Behalf of | Sep 21, 2018 | Firm News |

Alice was in her mid-70s when her family first noticed her mind slipping. At first it was just minor memory lapses, but they became longer with fewer lucid moments in between.

She began to wander from home and would forget how to get back, precipitating a search. Her kids were concerned about her living alone but couldn’t agree on what was best for her. Should they hire in-home nursing, place her in a retirement home, or have her live with one of them? Asking Alice didn’t help as her answer changed constantly.


Financial issues were a major factor in the decision, but nobody knew what kind of insurance coverage their mother had. Was in-home nursing covered? What was the limit on the cost for residential nursing care? Would any of them be able to handle her wandering when they had families and jobs that took them away from the house? While they debated the issue, Alice remained alone – until the day she fell.

Alice hit her head when she slipped on the sidewalk ice. She lay in the cold for at least two hours before she was found. Between the head injury and hypothermia, she was in a coma and on life support. Her family was devastated. They blamed themselves for their indecision in deciding for her safety and they wondered how the hospital bills would be paid. When the doctor called a conference and suggested that Alice was brain dead and they should consider removing her from life support, things went from bad to worse.

Nobody had wanted to think about the time their mother could not take care of herself. She had always been there for them, and they kept putting off discussions about what her views were on life support, what her wishes were regarding burial, etc. Part of the family felt they should do as the doctor suggested, but one daughter held out. The decision was tearing the family apart. Even the grandkids were beginning to take sides.

The family ended up taking Alice off life support, alienating the holdout sister completely. None of the others had ever planned a funeral because their mother had taken care of the arrangements when their dad passed away. More arguments ensued. With no known will, the fighting ended up in court to determine what would be done with the house, cars, and money Alice left behind. The fighting took a heavy toll on the family.

Unfortunately, situations like this happen every day and families are needlessly torn apart. In the end, the parent’s wishes may not be honored, and the children are left with pain and anger. All this can be avoided by spending a couple of hours with an estate planning attorney to put a plan in writing, leaving the family to concentrate on carrying out their loved one’s wishes.

An estate planning attorney helps you with a complete plan, not only for disposition of your estate following your death, but for life along the way. In the event of disability or incapacitation, a well- prepared plan defines your wishes and available resources and includes:

Advance Health Care Directive

An Advance Health Care Directive is a document that defines your wishes regarding medical choices including life support if you are incapacitated. In the event of physical incapacitation, do you wish to be made comfortable with pain medication, or do you wish for all life-saving and life-extending measures to be taken? By defining your wishes, you remove the burden of that decision from the shoulders of your loved ones. Similarly, declare your position on donation of organs. Family members often do not know, especially during times of grief, the best decision to make.


Last Will and Testament

In this legal document, you designate an executor and declare what you want done with every bit of your property and other assets. If there is something special you want left to one individual, then you identify that in your will. Include your wishes for disposition of your remains. The more you define your wishes and develop a plan for your own care, the less you burden your loved ones with these decisions. Otherwise, your family is left guessing at your wishes and opening the opportunity for disagreement.


A well-developed estate plan includes insurance policies.

Consider your need for:

  • Medical insurance;
  • Life insurance;
  • Long-term care insurance; disability insurance; and
  • Funeral and burial insurance.

Make sure you have policies in place to cover potential hospital and nursing care charges and let your loved ones know your living preferences. Evaluate in-home nursing, assisted living, and nursing home options. Determine the level of service covered by your insurance. By providing details to your family in advance of need, any moves can be handled smoothly and according to your wishes.

Discuss the value of life insurance with your estate planning attorney. If no one is dependent upon you financially and there are sufficient assets in your estate to cover end-of-life costs, you may not need a life insurance policy. Should you need coverage, consider whether you need a small term policy that pays out quickly to cover the cost of final arrangements or whether you need a more robust policy to cover additional estate costs or ensure someone else’s financial future.

Don’t feel you need to make all these decisions alone. The need for insurance policies and the amount of coverage is considered as part of an entire estate plan developed with the assistance of your estate planning attorney.


Your executor is a person you’ve nominated to carry out your final wishes in your last will and testament. A family member, trusted friend, or estate lawyer can serve as executor of your final will.

Your executor must be named in writing, generally final will. Share your will with your executors and close family members. Your original will, advance health care directive, insurance documents, and other valuable paperwork can be placed in a safe deposit box or in-home vault, but copies must be kept by your estate lawyer and given to your executors and close family members. It is critical that those close to you understand your wishes, who is responsible for handling decisions, and where documents can be found.

Avoid the Challenges Your Family May Face Without an Estate Plan

For Alice, having an estate plan in place would have avoided the challenges her children encountered. They would have known to place her in an assisted living facility with monitoring and better maintenance to limit her wandering or risk of injury. They would have understood what insurance policies or funds were available to cover the costs, or whether they needed to rely on federal support and their own funds. Instead of arguing about Alice’s care and estate, her children could have invested their time in supporting Alice and each other.

Nobody likes to think about end-of-life decisions, but it is a fact of life. By preparing in advance, you best guarantee your wishes are met and make it easier for your loved ones during their grieving process. Think of it as your final contribution as a parent to keeping your family peaceful and together.

If this sounds like something you would like to discuss further for your family, then please give me a call at 858-564-7090.