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Estate Planning
Estate Planning

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Incapacity Planning

Incapacity means you are unable to make decisions for yourself.   Such a condition can be the result of an injury, dementia, a stroke, heart attack, etc.  It can be temporary or permanent.  In any case, if you are unable to continue to conduct your day to day affairs, having a Will in place won't help.

 

A Will is only helpful in the case of death.  If you own property jointly. that usually presents with problems as well.  Some assets, especially real estate, require all owners to sign in order to refinance.  If you become incapacitated, a new joint owner - the court - becomes involved.

 

Having a Power of Attorney is a good planning tool, but if there is a problem with your Power of Attorney, or someone else has your assets, like a bank. a probate court will need to appoint someone to manage those assets for you.

Elder Law Attorney for Rhode Island, Eastern Connecticut and Southeastern Massachusetts

Rhode Island, Southeastern Massachusetts and Eastern Connecticut Elder Law Attorney

The court will decide who will act in your behalf and who will control your assets until you recover or die.  This process is public and called a guardianship or conservatorship.  It is expensive, time-consuming and difficult to end.  It also does not replace probate at the time of your death resulting in the possibility that your loved ones are faced going through the probate system twice.
 
So what can be done?

Revocable Trust

 

This trust allows you to transfer assets from your name to the name of your trust, which you can control as the trustee.  Because you no longer own the assets in your name the court has nothing to control in the case of incapacity.  This keeps your loved ones and your assets in your control.  

 

A Revocable Trust is:

 

  • Accepted by financial institutions

  • Provides detailed instruction and directions that a power of attorney does not

  • Holds a successor trustee to a higher fiduciary standard that a power of attorney

 

With this in place, a successor trustee that you have named will manage your assets.  Connelly Law Offices, Ltd., your Rhode Island Elder Law Attorney can help you protect your assets.


When you set up a revocable living trust, you transfer assets from your name to the name of your trust, which you can control as the trustee. Because you no longer own the assets in your own name, there is nothing for the court to control if you become incapacitated. The concept is simple, but this is what keeps your loved ones and your assets out of court.
 

Managing Your Health Care Decisions

 

If you want to be in control of your healthcare decisions when incapacitated, you will need to have three documents in place.  These documents, called advanced medical directives, work together to direct your healthcare even when you cannot.  Without these, a health care provider will look to someone else, usually a family member, to become your caregiver.

 

  • Durable Power of Attorney - gives someone the power to make healthcare decisions for you if you cannot

  • Living Will - speaks for you when you cannot and tells your doctors whether you want to be kept alive in a vegetative state or allowed to die

  • HIPAA Authorization - Laws that control to whom your doctor can disclose your medical condition to.

 

Without these instructions, your loved ones may not be able to be informed about your condition and may not be allowed to visit you in the hospital or nursing facility. 

 

Connelly Law Offices, Ltd., your Rhode Island Elder Law Attorney, can help you set up an incapacity plan.  Call us today!

 

Call Connelly Law Today

Rhode Island Elder Law Attorney

855-724-9400

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This website includes general information about legal issues, issues affecting seniors and developments in the law. Such materials are for informational purposes only and may not reflect the most current legal developments. These informational materials are not intended, and must not be taken, as legal advice on any particular set of facts or circumstances. You need to contact a lawyer licensed in your jurisdiction for advice on specific legal issues and/or problems.