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What Is Incapacity Planning?

Posted on in Estate Planning

Chicago Estate Planning LawyerLife is unpredictable, and it is important to be prepared for the worst. The estate planning process can help ensure that you and your family will have plans in place should the unthinkable happen. While many estate plans focus on what will happen after a person's death, it is also important to plan for potential incapacitation. Incapacity can be the result of serious illness or injury, or it could even be related to a mental illness. With proper incapacity planning, you can prepare for any potential issues that may arise in the future, and you can also ensure that your wishes will be respected should you become unable to make decisions for yourself. 

Understanding Incapacity Planning

Incapacity planning is the process of creating legal documents that will come into effect when you become unable to make decisions on your own behalf. These documents outline who will make decisions on your behalf, based on your wishes. Incapacity planning establishes how you will receive medical care and how your financial affairs will be handled if you cannot do so yourself due to illness or injury. 

The Benefits of Incapacity Planning 

Creating an incapacity plan provides peace of mind knowing that your wishes will be respected should anything happen to you or your loved ones. It serves as a safeguard against potential disagreements between family members over decisions regarding health care, finances, or other matters. An incapacity plan can also help avoid lengthy court proceedings by providing clear instructions about the types of treatment desired in the event of illness or injury. Lastly, having an incapacity plan in place can reduce stress and ease anxieties about the future for those involved by clarifying everyone's role within the family unit and outlining exactly what needs to be done in certain situations. 


Evergreen Park, IL charitable trust attorneyThere are multiple types of trusts that can be created during the estate planning process. When you create a trust, you transfer certain assets into the control of the trust, and these assets will be managed by a trustee and distributed to different beneficiaries according to your instructions. A charitable trust is a type of trust that is created for the purpose of making donations to charitable organizations. Charitable trusts fall into two general categories: charitable lead trusts and charitable remainder trusts. Each type of trust has different benefits and drawbacks, so it is important to consult with an estate planning attorney to determine which type of trust is right for you.

Charitable Lead Trusts

A charitable lead trust (CLT) is a trust in which the trustee makes payments to a charity for a specified period of time. After this period ends, the trustee will transfer the remaining assets to other named beneficiaries. CLTs can be either grantor trusts or non-grantor trusts. Grantor CLTs are taxed as part of the grantor's estate, while non-grantor CLTs are taxed as separate entities. CLTs can be an effective way to minimize estate taxes and transfer wealth to beneficiaries in a tax-advantaged manner.

Benefits of CLTs include an immediate income tax deduction for the present value of the payments made to charities and the ability to transfer wealth to future generations while still providing support to charities during the donor's lifetime. However, these trusts may also have some drawbacks. Since they are typically irrevocable trusts, the donor cannot change their mind about the terms of the trust once it has been created, and the donor will not be able to access the assets held in the trust. 


Chicago living trust lawyerThere are a variety of steps that you can take to ensure that you and your family are prepared for the future. A revocable living trust is a popular estate planning tool that can be used to manage your assets and protect your loved ones after your death. With a revocable living trust, you can maintain control over your assets during your lifetime and specify how you would like those assets to be distributed to different beneficiaries. With the help of an experienced attorney, you can determine the best steps to take to address the current and future needs of your family.

Advantages of Living Trusts

A trust is a legal entity that can hold ownership of your assets. When you create a trust, you will transfer assets into the trust, and you will provide instructions that will be followed by a trustee regarding how assets should be distributed to your beneficiaries. With a living trust, you may serve as the trustee, which will allow you to maintain control over your assets. You can also make yourself a beneficiary, which will allow you to use your assets to meet your own needs. Since a living trust is typically revocable, you will be able to modify the terms of the trust at any time. After your death, a successor trustee that you have chosen will assume control over the trust's assets, and they will follow your instructions regarding the distribution of the remaining assets to beneficiaries.

Revocable living trusts can provide multiple benefits, including:


Beverly estate planning lawyerIf you are like most people, you may not fully consider issues affecting your health and medical care until it is too late. If an unforeseen accident or illness leaves you incapacitated and unable to make your own medical decisions, who will speak for you? A power of attorney for healthcare can ensure that your wishes are followed in the event that you are unable to communicate them yourself. With the help of an estate planning lawyer, you can make sure your needs will be met, no matter what happens in the future.

Benefits of a Medical Power of Attorney

When you create a power of attorney agreement, you will name a person who will be authorized to make certain types of decisions for you. This person is known as your “agent,” and they can be anyone who is over the age of 18 and who you trust to act in your best interests. If necessary, you can also name one or more successor agents who will be able to make decisions for you in the event that the first person you choose as your agent is unavailable or unwilling to serve in this capacity.

A power of attorney for healthcare will grant your agent the authority to make multiple types of decisions related to your health, welfare, and medical care. They will generally be able to decide the types of treatments you will receive and whether certain treatments may be declined or withdrawn. These may include decisions that affect life-saving, life-sustaining, or end-of-life care. Your agent may be allowed to decide whether you will be admitted to a hospital, mental health facility, or assisted living facility. They will also have access to your medical records and medical history. While your agent’s decisions will generally be related to the care you receive during your life, they may also carry out your wishes regarding the disposition of your remains, including making arrangements for organ donation, performing an autopsy, and burial or cremation.


Evergreen Park Estate Planning LawyerThe estate planning process involves decisions about how a person’s assets will be distributed to their heirs following their death. During this process, it is important to understand how different types of assets will be handled. Some assets may be passed to heirs through the probate process, in which the executor of the person’s estate will file their will in probate court, take an inventory of their assets, notify beneficiaries and creditors, and distribute the assets according to the instructions provided in the will. This process can be complicated, but a person may be able to make things easier for their loved ones by determining whether certain assets may be passed to their heirs without the need to go through probate.

Options for Distributing Assets Outside the Probate Process

Probate assets will typically include a person’s physical belongings or financial assets left to beneficiaries in their will. In many cases, court oversight will be required when these assets are distributed to heirs during the probate process. However, certain types of assets will not need to go through probate, and they can be directly distributed to beneficiaries following a person’s death. These include:

  • Jointly-owned property - A person may co-own certain assets along with their spouse or other family members. For assets that are jointly owned with the right of survivorship, the co-owner will assume full ownership of the assets following a person’s death. These arrangements are often used for real estate property such as a couple’s family home. Other jointly-owned assets, such as shared bank accounts, may also be handled in this manner.

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