Planning For Incapacity


A Durable Power of Attorney allows you to maintain control of your financial affairs in the event of incapacity. You choose the person who you want to serve as your "attorney in fact," generally your spouse or domestic partner, a trusted family member, or a friend.  Benefits of appointing a Durable Power of Attorney include:

  • Ensuring your wishes are carried out
  • Controlling who will make decisions for you rather than having the courts decide
  • Ensuring your wishes go into effect immediately upon becoming incapacitated

You can create a Durable Power of Attorney if you are at least 18 years of age, legally competent, and a resident of the state in which you have it created. Likewise, you can name anyone you wish to serve as your power of attorney as long as they are 18 years old and legally competent. It is a good idea to name both a primary power of attorney and an alternate.

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If you are unable to make healthcare decisions for yourself, you can name a person to make them for you using a Durable Power of Attorney for Health Care or Health Care Proxy. The person you name can make all health care decisions on your behalf, or just some of them. You can choose specific instructions for your agent to follow. Then, hospitals doctors and other health care providers must follow your agent’s decisions as if they were your own.

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A Living Will details how you would like to be cared for and whether you want extraordinary measures to be taken to keep you alive if you become permanently unconscious, terminally ill or otherwise unable to make or communicate decisions regarding treatment. You can specify exactly what treatments you would want, and those you would not. In this way, a Living Will not only ensures you have control over how you will be cared for in an end of life situation, but also protects your loved ones from having to make difficult decisions on their own.

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The 1996 Health Insurance Portability and Accountability Act, or HIPAA, prohibits the release of medical information, even to spouses and children authorized in durable powers of attorney. By signing an HIPAA Authorization Form, you ensure the release of medical information to your agents, successor trustees, family, and anyone else you designate.

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