Planning While You Can: The Importance of Incapacity Planning and What Happens Without It
Having incapacity planning documents in place is always important because they allow people you trust to make medical and financial decisions on your behalf if you’re ever unable to do so yourself. On its face, that sounds like an obvious step, but it’s also easy to assume these documents are something you’ll never actually need. And hopefully, you won’t.
That said, as a law firm focused on estate planning, we work with clients in all kinds of circumstances. Some of the most difficult situations we see arise when someone becomes incapacitated without having these documents in place. In those cases, spouses and family members are often left with no choice but to pursue guardianship through the court system, a process that is far more complicated, expensive, and stressful than most people realize.
What Does the Guardianship Process Look Like?
In short: it’s slow, costly, and ongoing.
To obtain guardianship, a family member must file a formal court case, provide medical evidence of incapacity, attend hearings, and wait for a judge’s approval. Even after guardianship is granted, court involvement doesn’t end there. Guardians are required to:
File ongoing annual reports
Account for financial activity
Complete initial and continuing education
Seek court approval for certain decisions
This process can take months and often happens during an already emotionally difficult time. What’s especially frustrating is that in many cases, guardianship could have been entirely avoided with some basic planning.
The Documents That Can Prevent Guardianship
In Ohio, a few well-drafted documents can give your loved ones the authority they need, without court involvement, if something happens to you. These include:
Durable Financial Power of Attorney: Allows a trusted person to manage your finances, pay bills, handle banking, and manage assets.
Healthcare Power of Attorney: Authorizes someone to make medical decisions on your behalf if you can’t communicate or make decisions yourself.
HIPAA Authorization: Allows your agents and loved ones to access medical information and speak with healthcare providers.
Advance Healthcare Directive (Living Will) (optional): Expresses your wishes regarding end-of-life care.
Limited Powers of Attorney for Minor Children: Allows another adult to temporarily care for your children if you’re unavailable or incapacitated.
With these documents in place, your loved ones can step in immediately when needed, without court delays or uncertainty.
What Happens Without Incapacity Planning?
When someone becomes incapacitated without these documents, even a spouse may be unable to act. This can lead to serious complications, including:
Difficulty managing individually owned assets: Bank accounts, investment accounts, and retirement assets held in one person’s name may become inaccessible.
Problems with jointly owned real estate: Even when property is jointly owned, certain actions, such as refinancing, selling, or placing a transfer on death designation, may be impossible without proper authority.
Delayed medical decisions: Healthcare providers may be limited in what they can discuss or authorize without a healthcare power of attorney in place.
Court involvement during a crisis: Families are forced into the guardianship process at a time when their focus should be on care and recovery.
Planning Ahead Is a Gift to Your Family
Incapacity planning isn’t about expecting the worst, it’s about making things easier for the people you care about if the unexpected happens. These documents are often simple to put in place, but they can make an enormous difference during a difficult time.
Planning while you can gives you control, provides clarity, and spares your loved ones from unnecessary stress and court involvement later on.
If you have questions about incapacity planning or want to make sure your documents are in place, we’re always happy to help.
