In the spring of 2020, we watched heartbreaking stories unfold as patients were admitted to hospitals with no loved ones allowed at the bedside.
Families waited by the phone for updates to trickle in. At the time, we thought of it as a story about a dangerous disease. But for many families, it was also a story about legal gray areas.
That’s because without the right legal documents in place, spouses, children, and other loved ones found themselves unable to get information from medical providers or make decisions for someone they loved. When families looked to the courts to help, many had scaled back or even closed operations, so there was no quick legal fix to be found.
The reality is that the pandemic didn’t create these problems, it just brought them to light dramatically. It doesn’t take a global health crisis for someone to end up in the same spot today. All it takes is a medical emergency, a car accident, or a sudden illness.
What “Incapacity” Really Means
Incapacity means being unable to make or communicate your own decisions, either temporarily or for the long term. It’s easy to think of it as something that only happens to the elderly, but it doesn’t work that way. A stroke, a serious car accident, or complications from a routine surgery can leave a person of any age unable to speak for themselves, sometimes with no warning at all.
That’s why we consider planning for incapacity the most important part of estate planning. A will only matters after you’re gone. Incapacity planning protects you, and the people who love you, while you’re still here.
Hard Lessons from the Pandemic
Lesson 1: Families couldn’t get information
Privacy rules, along with hospital policies, limited what providers could share with people who weren’t specifically authorized. Being married for decades or being someone’s child doesn’t automatically give you the right to call the doctor, review test results, or understand a treatment plan. Many families learned this the hard way, at the worst possible moment.
Lesson 2: No one was authorized to make medical decisions
When a patient can’t speak for themselves and hasn’t named a health care agent, decisions can be delayed or fall to default rules that may not reflect what the patient actually wanted.
Lesson 3: The bills didn’t stop
The mortgage, utilities, insurance premiums, and taxes all kept coming due while people were hospitalized. Without a financial power of attorney or a trust with a successor trustee, there was often no one with legal authority to pay bills, access accounts, or keep the household running.
Lesson 4: Everyday affairs still needed attention
Someone still had to talk to an employer, manage benefits, deal with an insurance company, or look after a home, a pet, or a business. These are the small, practical details that pile up quickly when you can’t handle them yourself.
Lesson 5: The courts weren’t a quick fix
When there’s no plan, the backup is usually a court proceeding to have a guardian or conservator appointed. Even in normal times, that process is slower, more expensive, and more public than planning ahead. During the pandemic, it was even slower, and families who needed quick answers had nowhere to turn.
Five Critical Incapacity Questions
If something happened to you tomorrow, would your family know the answer to each of these?
Who takes care of your bills when you can’t?
Who deals with your employer?
Who handles your personal affairs?
Who makes your medical decisions?
Who can call your doctors, get information, and make appointments for you?
Not knowing the answer to any of these questions means there’s a gap in your plan.
Common Incapacity Planning Tools
The good news is that the solutions are well established, and they’re far easier to put in place now than in the middle of a crisis. Here are five common ones that we start with:
Durable power of attorney. Names someone you trust to handle financial and legal matters if you can’t. “Durable” means it stays effective even after you become incapacitated.
Advance medical directive (health care power of attorney). Names a health care agent to make medical decisions for you and lets you put on record what your wishes about the kind of care you want.
HIPAA authorization. Gives your doctors permission to share your health information with the people you choose, so your family isn’t left in the dark.
Revocable living trust with incapacity provisions. Allows a successor trustee to step in and manage trust assets without going to court.
Virginia has its own requirements for how these documents are signed and witnessed, so it’s worth having them prepared or reviewed by a local attorney who knows the specifics and get provide relevant insight.
Common Mistakes to Avoid
Assuming a spouse or adult child automatically has authority. In many situations, they don’t.
Having documents that are outdated, unsigned, or impossible to find. A perfect document no one can locate doesn’t help much in an emergency.
Naming an agent without talking to them first. Your agent should know they’ve been chosen and understand what you’d want.
Relying on joint accounts as a workaround. They can solve one problem while creating others.
Waiting until there’s a diagnosis. The time to plan is while you’re healthy and able to make these decisions.
Your Next Steps
Choose your agents, along with backups in case your first choice isn’t available.
Get your documents signed properly, and make sure your agents (and, where appropriate, your doctors) have copies.
Review your plan every few years, and after any major life change such as a marriage, divorce, move, or new diagnosis in the family.
Talk with your family about what you want, so no one is guessing.
Peace of Mind Before You Need It
Nobody wants to think about being unable to speak for themselves. But the families who struggled during COVID would tell you the same thing: it’s much easier to have this conversation, and sign these documents, before an emergency than during one.
If you don’t have an incapacity plan, or you’re not sure the one you have would hold up in an emergency, Davis Law Group can help. Contact us to schedule a consultation and put your mind at ease.
What COVID Taught Us About Incapacity Planning
In the spring of 2020, we watched heartbreaking stories unfold as patients were admitted to hospitals with no loved ones allowed at the bedside.
Families waited by the phone for updates to trickle in. At the time, we thought of it as a story about a dangerous disease. But for many families, it was also a story about legal gray areas.
That’s because without the right legal documents in place, spouses, children, and other loved ones found themselves unable to get information from medical providers or make decisions for someone they loved. When families looked to the courts to help, many had scaled back or even closed operations, so there was no quick legal fix to be found.
The reality is that the pandemic didn’t create these problems, it just brought them to light dramatically. It doesn’t take a global health crisis for someone to end up in the same spot today. All it takes is a medical emergency, a car accident, or a sudden illness.
What “Incapacity” Really Means
Incapacity means being unable to make or communicate your own decisions, either temporarily or for the long term. It’s easy to think of it as something that only happens to the elderly, but it doesn’t work that way. A stroke, a serious car accident, or complications from a routine surgery can leave a person of any age unable to speak for themselves, sometimes with no warning at all.
That’s why we consider planning for incapacity the most important part of estate planning. A will only matters after you’re gone. Incapacity planning protects you, and the people who love you, while you’re still here.
Hard Lessons from the Pandemic
Lesson 1: Families couldn’t get information
Privacy rules, along with hospital policies, limited what providers could share with people who weren’t specifically authorized. Being married for decades or being someone’s child doesn’t automatically give you the right to call the doctor, review test results, or understand a treatment plan. Many families learned this the hard way, at the worst possible moment.
Lesson 2: No one was authorized to make medical decisions
When a patient can’t speak for themselves and hasn’t named a health care agent, decisions can be delayed or fall to default rules that may not reflect what the patient actually wanted.
Lesson 3: The bills didn’t stop
The mortgage, utilities, insurance premiums, and taxes all kept coming due while people were hospitalized. Without a financial power of attorney or a trust with a successor trustee, there was often no one with legal authority to pay bills, access accounts, or keep the household running.
Lesson 4: Everyday affairs still needed attention
Someone still had to talk to an employer, manage benefits, deal with an insurance company, or look after a home, a pet, or a business. These are the small, practical details that pile up quickly when you can’t handle them yourself.
Lesson 5: The courts weren’t a quick fix
When there’s no plan, the backup is usually a court proceeding to have a guardian or conservator appointed. Even in normal times, that process is slower, more expensive, and more public than planning ahead. During the pandemic, it was even slower, and families who needed quick answers had nowhere to turn.
Five Critical Incapacity Questions
If something happened to you tomorrow, would your family know the answer to each of these?
Not knowing the answer to any of these questions means there’s a gap in your plan.
Common Incapacity Planning Tools
The good news is that the solutions are well established, and they’re far easier to put in place now than in the middle of a crisis. Here are five common ones that we start with:
Virginia has its own requirements for how these documents are signed and witnessed, so it’s worth having them prepared or reviewed by a local attorney who knows the specifics and get provide relevant insight.
Common Mistakes to Avoid
Your Next Steps
Peace of Mind Before You Need It
Nobody wants to think about being unable to speak for themselves. But the families who struggled during COVID would tell you the same thing: it’s much easier to have this conversation, and sign these documents, before an emergency than during one.
If you don’t have an incapacity plan, or you’re not sure the one you have would hold up in an emergency, Davis Law Group can help. Contact us to schedule a consultation and put your mind at ease.
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