Many people who visit an estate planning attorney to make preparations for the distribution of assets to their loved ones after death also want to develop a comprehensive end-of-life plan. It is not a subject that most individuals are very anxious to think about, but few of us pass away peacefully in our sleep one night after having been totally healthy and lucid during the preceding days, months, and years. It is not uncommon for people to go through a period of incapacitation before they pass away, so if you want to cover all your bases incapacity planning is something to discuss with your estate planning attorney as well.
If you become unable to make sound decisions for yourself due to mental and/or physical incapacitation an interested party could petition the state to appoint a guardian or conservator to act in your behalf. Most people would rather select their own potential decision-makers, and this is done through the execution of powers of attorney. A standard power of attorney does not remain in effect after the incapacity of the grantor, so people generally use something called a durable power of attorney which does indeed remain in effect should the grantor become incapacitated.
The thing about a durable power of attorney that many people are not totally comfortable with is the fact that the appointed agent does have the power to act even if the grantor is not incapacitated. This concern can be assuaged through the creation of a “springing” durable power of attorney. These documents can be constructed to allow the instrument to “spring” into effect only upon the incapacitation of the grantor.
The major pitfall involved with the springing power of attorney is the fact that there can be disagreements concerning whether or not the grantor is in fact incapacitated and possibly when he or she became incapacitated. However, the springing durable power of attorney is an option and something to keep in mind when you are planning your estate.
Mr. Nirenstein is licensed to practice before the courts of the State of Connecticut and the United States District Court. He is a member of the Connecticut and Hartford County Bar Associations, and the Estate and Probate, Elder Law, Business Law and Real Estate Sections of the Connecticut Bar Association.
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