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1 INCAPACITY PLANNING IN NORTH CAROLINA - USING SPECIFIC TOOLS While You Can Make Almost Any Decision You Like When Creating an Incapacity Plan, Failing to Make Those Decisions in the Proper Way Will, at the Very Least, Fail to Provide You with the Reassurance that Your Wishes Will Be Honored CHERYL K. DAVID North Carolina Estate Planning and Elder Law Attorney

2 In our second discussion of incapacity planning in North Carolina, we are going to take a look at some specific incapacity planning tools that you will likely create as you create your individualized incapacity plan. Even though no two plans are identical, there are basic tools that everyone uses. The key difference in these tools is not the form they take, but rather, the individual choices you make with them. Only you can make these decisions, and the incapacity planning tools you create will ensure that your decisions will be respected if you can no longer make decisions for yourself. FINANCIAL POWER OF ATTORNEY A financial power of attorney is one of the more important incapacity planning devices you can create. Through your financial power of attorney, an agent of your choice will be able to step in to manage your financial responsibilities should you become incapacitated. This person can take on a wide range of responsibilities, such as paying bills, making bank deposits, managing your real estate or investments, or almost any other financial or personal task you would have that person do. 3

3 When creating a financial power of attorney, the agent you select must be a capable adult. Alternatively, you can choose an organization to serve as your agent. For example, you might choose your bank, a law firm, or some other capable representative to manage your financial affairs for you. It s also important to note that your financial power of attorney can take effect immediately upon creation or at a later date. If you want to use the power of attorney for incapacity planning purposes, it s essential that you create what is known as a durable power of attorney. A durable power gives your agent the right to act for you after you have become incapacitated.nt di nces. ADVANCE MEDICAL DIRECTIVES Should you become incapacitated in North Carolina, you will also want to have prepared advance medical directives. Advance directives, also called health care directives, are documents that allow you to communicate medical decisions. There are several key types of advance medical directives in North Carolina. 4

4 Health Care Power of Attorney. Like a financial power of attorney, a health care power of attorney gives you the ability to name an agent. Unlike your financial power of attorney, your agent under the health care power of attorney will be able to make medical decisions on your behalf. So, for example, should you become unconscious after being involved in an automobile crash, your agent under health care power of attorney will be able to speak to your doctors and make medical decisions for you. Declaration of a Desire for a Natural Death. More commonly known as a living will, a Declaration of a Desire for a Natural Death is a document that allows you to state your preferences for receiving certain types of medical treatment if you have a terminal illness, or are in a persistent vegetative state. As long as the document complies with North Carolina law, your doctors and health care providers will have to honor your wishes. Further, should you create a Declaration of a Desire for a Natural Death along with a health care power of attorney, your agent under the power of attorney must abide by the decisions you expressed in your living will. 5

5 Advance Instruction for Mental Health Treatment. Should you one day require mental health care, you can have an Advance Instruction for Mental Health Treatment prepared that will outline what you do and do not consent to as you receive care. Similar to a declaration of a desire for natural death, the Advance Instruction for Mental Health Treatment must be made in writing and must contain specific instructions about the kind of mental health care and treatment you wish, or don t wish, to receive. STANDBY GUARDIAN APPOINTMENT If you have a minor child and become incapacitated, you ll also want to be sure that the child will be properly cared for. In many situations, the child s other parent will have the ability to care for the child. However, if you are single parent, or the other parent is not capable of caring for the child, you might need to prepare for the appointment of the standby guardian. Standby guardian appointments have to be approved by a court, so you will need to speak to your lawyer for more details about this option. 6

6 CAREFUL PLANNING REQUIRED If there is a single lesson to take away from our discussion of incapacity planning in North Carolina, it s this; only you have the ability to create an incapacity plan that protects your wishes. If you don t choose to act, the choices you can make through any legal device will have to be made for you by someone else. Depending on your circumstances, that someone else could be your spouse, a close relative, or even someone appointed by a judge. Further, it s also possible that failing to make incapacity plan will mean that the person you want to make decisions on your behalf will not be able to do so. For example, if you are in a long-term committed relationship but are not married, there is no guarantee that your partner will be able to make decisions on your behalf should you become incapacitated. Finally, if you choose to make an incapacity plan, you must be able to make sure that you make your choices through legally recognized devices. While you can make almost any decision you like, failing to make those decisions in the proper way will, at the very least, fail to provide you with the 7

7 reassurance that your wishes will be honored. At the worst, it can mean length and expensive legal battles. On the other hand, if you come talk to the attorneys and staff at the Law Offices of Cheryl David, you can rest assured that the plan you create will protect your wishes. We have years of experience counseling our clients on the creation of incapacity plans, and can guide you through the process with little difficulty. 8

8 ABOUT THE AUTHOR Cheryl David is a graduate of UNC-Chapel Hill, the University of Baltimore School of Law, and the prestigious Trial Lawyer s College presided over by Gerry Spence. A former Administrative Judge, Cheryl is certified as an Estate Planning Law Specialist by the ABA accredited Estate Law Specialists Board, Inc. She is also a member of the American Academy of Estate Planning Attorneys, Medicaid Practice Systems and the National Academy of Elder Law Attorneys. In 2008, Cheryl received the honor of becoming a Fellow with the American Academy of Estate Planning Attorneys. The Fellow program recognizes Academy Members who demonstrate advanced expertise and significant practical experience in the total estate planning, trust, tax planning, guardianship, probate and estate administration fields. In order to maintain this advanced expertise, Cheryl takes over 36 hours of continuing education in Estate Planning, Elder Law, and Taxation each year. Also a Financial Planner, she holds the Series 7 and 66 Investment Licenses in addition to both Insurance and Long Term Care/Medicare designations. Her professional capabilities, together with over 25 years in practice, have combined to bring positive change to the lives of over 4500 clients and their families. 528 College Road Greensboro, NC Phone: (336) Fax: (336)

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