Legal Documents You Need to Plan for Incapacity

When most people think about estate planning, they think about creating a last will and testament. However, there are many other documents Charlotte residents need as part of a comprehensive estate plan. Taking some time to state your preferences upon becoming incapacitated will help ensure that your wishes are met. We will discuss essential estate planning documents you need in place to protect yourself.

Did you know that only one-third of American adults have advanced medical directives? An advanced directive states what an individual wants to happen if they become unable to make healthcare decisions or are seriously ill. North Carolina law gives residents the right to decide about their medicine, medical care, and health through a legal document called an advance medical directive. If you become incapacitated by Alzheimer's disease, a coma, or dementia, North Carolina may consider them incapacitated and unable to make medical decisions.

As long as you prepare your North Carolina advance directive while you are of sound mind, a court will honor your instructions if you become incapacitated. North Carolina law gives every Florida resident the right to create an advanced directive. In your advance directive, you will appoint another person to make medical care decisions when you cannot make them due to incapacity.

You will also be able to provide direction for your attending physician as to whether to withhold, withdraw, or provide life-prolonging procedures. Making your wishes for medical care clear will help you receive the care you want. It will also help your family because they will know your preferred treatment choices and can rest assured that your health care agent will help those preferences become a reality.

A North Carolina living will is also called an “advance directive.” A living will typically state what a person wants to happen should they become incapacitated or severely injured. Now, North Carolina residents can sign one advance directive that needs to be notarized. One of our experienced estate planning lawyers can help you complete the advance health directive form so that it accurately states what you would like to happen should you become unable to make decisions for yourself.

We have discussed the items you need to state your wishes for medical treatment should you be incapacitated. You also need to protect your financial assets, including your money, home, and vehicles. Who will pay your mortgage and other bills if you become incapacitated and unable to make your own decisions? One of the best ways to protect yourself is to sign a durable power of attorney, which remains in effect if you become incapacitated. You can appoint someone to act as your agent and make financial or legal transactions on your behalf.

In 2018, North Carolina made some changes to its law regarding durable powers of attorney. Now, you will no longer have to register a power of attorney in the office of the register of deeds for it to remain effective, except in the case of real estate transactions. Additionally, when a power of attorney is “springing” or contingent, it will come into effect when you become incapacitated.

When that is the case, the named agent has the authority to verify that your incapacitation has occurred. Typically, your agent will be able to verify your incapacitation with a doctor’s letter. We recommend appointing a spouse, family member, or friend to act as your durable power of attorney. If you are unsure who to appoint, you can consider selecting your attorney or service to represent you.

Another way to protect your finances is to create a trust and name someone else as your successor trustee. Should you become incapacitated, your successor trustee can immediately take over controlling your assets that you have transferred into your trust. Trusts exist outside of the probate system, and you may be able to decrease your tax liability by creating trust.

Hiring an attorney to help you prepare your advance directive is a good idea. When you work with the experienced lawyers at Arnold & Smith, PLLC, we will review your case and ensure you have all of the legal documents you need to protect yourself. Our Charlotte estate planning lawyers will help you analyze your personal issues, craft a clear directive, and legally convey your wishes to medical personnel and family members. Contact us to set up your appointment today.