Thinking about the Unthinkable: Protecting your Assets in Case of Medical Incapacity

This article is not a substitute for, nor does it constitute, legal advice. Only an attorney who knows the details of your particular situation can provide you with legal advice.

Thinking about the Unthinkable: Protecting your Assets in Case of Incapacity

Before we shuffle off of this mortal coil, we want to make sure that those we care about do not have to worry about anything unnecessary. The decline in health of a loved one is always a difficult yet often inescapable occurrence, and for that reason it must be discussed frankly. The unwelcome moment when a loved one becomes medically incapacitated is one of the most stressful periods many people will ever experience. The least we can do for our loved ones is take a few basic steps to make life a little easier for them should we ever become medically incapacitated.

There are a few ways we can plan ahead to minimize the difficulties our loved ones might face should any of us have a serious decline in health that results medical incapacity. Typically, we should at least draft a living will and give a trusted individual a durable power of attorney.

What is the legal definition of incapacity?

In a health care context, incapacity typically means that a person either:

  • Does not or cannot understand the consequences of the health care decisions that person must make; or
  • Cannot communicate his decisions at all (orally, in writing, or through gestures)

Incapacity can end in one of three ways: when an individual’s health improves to the point where he regains capacity, via a court order, or when he passes away.

Living Wills

A living will is a legal document that expresses your wishes regarding life-prolonging treatment. Having a living will helps your loved ones by allowing them to know if and when you want them to “pull the plug”. This removes the heavy burden of having to guess your wishes from their collective shoulders.

If you remember the Terry Shaivo case, I trust we can all agree that we wish to avoid putting our families through a similar situation: where the family is unsure of the incapacitated individual’s wishes, resulting in a huge family dispute as to what course of action they should take. None of that media-amplified drama would have occurred if Shaivo had a living will in place before she became medically incapacitated.

Durable Power of Attorney

A durable power of attorney is a legal document that gives someone you choose the power to make important decisions for you in case you become incapacitated. The power granted can be general or limited.

A general durable power of attorney allows your chosen individual to step into your shoes and make every legally operative decision you could have made before becoming incapacitated. Typically, these decisions include expenditure of your funds, the disposition of your estate, and decisions about your health care.

A limited durable power of attorney, on the other hand, specifically delineates what your chosen individual can and cannot do. Your chosen individual must closely follow the guidelines provided by your limited durable power of attorney.

Be very careful whenever you choose to give someone a durable power of attorney because that person could literally be making decisions where your life hangs in the balance.


This article only lightly touched upon the estate planning considerations regarding unwanted changes in your health. There are also many tax implications, methods to protect your assets, and further concerns you should address when planning for future in the health care context. I sincerely hope that this article has provided some guiding light as per your options.

The entirety of this article is copyrighted by Grant A. Toeppen, Esq., © 2012.  Please send an email to if you would like to use this article in part or in its entirety.


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