Who Will Help You Take Care of Your Estate If You Become Incapacitated?

Who will help you take care of your estate if you become incapacitated? You have provided for and protected your family for many years. However, when your children grow into adulthood, you will still have a legacy to protect.

You will want to make sure that your estate remains a testament to your dedication and hard work and serves the needs of those you leave behind.

But what happens if you are only incapacitated rather than passing away? Incapacitation can happen to anyone at any age, but for those of us in our golden years, becoming incapacitated at some point is all but inevitable.

Unfortunately, there is no one-size-fits-all plan to protect you if you become incapacitated.

That is why it is a good idea to understand all the preparations you can make and services you can access to help protect your estate should you lose the ability to manage it alone — either temporarily or for the long term.

The following is a list of legal provisions and tools you can use to help ensure your estate is taken care of if you should become incapacitated or die.

Last Wills and Testaments

A last will and testament is a legal document that contains the final wishes of an estate holder regarding his or her dependents and possessions.

A last will is written while the estate holder is alive and in a sound state of mind. It names an executor whose job it is to administer the estate and to follow the estate plan.

Should an estate holder die without drafting a valid will, he is said to have died “intestate.” The state becomes the executor of the estate.

There are several legal implications to be considered when drafting your final will. It is best to consult an attorney to assist you in writing your last will in a manner that guarantees your estate is settled following your wishes.


A trust is a fiduciary agreement that assigns a trustee to hold specific assets on behalf of one or more beneficiaries. Traditionally, the purpose of a trust is to minimize the tax liability of an estate.

A trust is usually designed to avoid probate, which can compromise the privacy of an estate holder and can be a lengthy and expensive process.

A trust gives you the ability to ensure your wealth is managed according to your wishes — to protect your legacy, ensure privacy, and save money on the probate process.

There are many different types of trusts, each with their features and benefits. It is best to consult with an attorney to help you choose the type that suits your needs.

Health Care Powers of Attorney

If you should become incapacitated, you may be unable to communicate your wishes regarding your health care. A health care power of attorney is a document that designates a specific person as holding the authority to speak for you in matters of health care.

Many people assume they will not lose the ability to communicate should they become infirm, are injured or are otherwise incapacitated. Unfortunately, this is not always the case. A family member, trusted friend or an attorney can be given health care powers of attorney.

Financial Powers of Attorney

Financial powers of attorney are similar to health care powers of attorney except that they concern financial matters rather than health matters.

If you should lose the ability to communicate, they give someone permission to make financial decisions on your behalf.

Other Powers of Attorney

Powers of attorney give the designated holder more than just the ability to speak for you should you lose the ability to communicate. It can also allow the “agent” or “attorney in fact” to access accounts such as a bank account or retirement account.

A durable power of attorney is used for property management and can help alleviate the costs associated with guardianship or conservatorship.

There are several types of powers of attorney, including those discussed above. A lawyer who specializes in estate law can help you decide which is best for your needs.

Guardianship Nomination

A guardian nomination is a document that describes how you wish your minor children to be cared for if you and/or the other parent lose the ability to provide care. It specifies who can be appointed to care for your children and to act as a legal guardian and how care should be given.

Guardian nomination goes into effect after both natural parents lose the ability to provide care.

The dictates of the nomination must be written within the confines of the law for it to be recognized by the court as valid. Your attorney can help you to draft a guardianship nomination that meets the legal standard.


Inheritance is what your dependents receive if you pass away if you have not provided a last will. Inheritance laws differ from one state to the next, and they leave much to the whim of the state.

It is ideal to have a last will to ensure your estate gets settled in the manner of your choosing. However, an estate lawyer can help to ensure that inheritance is dispensed appropriately if necessary.


Your legal heirs are anyone who receives ownership or interest in your property, land or hereditaments should you die intestate. In most cases, these are your spouse, children, or other close family members.

Of course, if you do die intestate, the state will take control of your estate and determine who will receive what and how much.

As always, it is better to work with an estate lawyer who will help you draft a last will that ensures that your heirs receive hereditaments per your wishes.


Probate is the process by which your will is proven to be valid. The validity of wills is decided by a probate court and can be a lengthy and expensive process.

The court’s job is to attempt to ensure that no fraud or undue influence was involved in the drafting of the will. It is possible to avoid probate through beneficiary designations or the use of a revocable living trust, among others.

Working with an estate attorney is the best way to ensure your will is written and delivered in a way that will make it abundantly clear that it is indeed your own and not that of anyone else — or that it was written under some undue influence.


These indispensable parts of your estate-planning toolkit, working together, can ensure that your estate is settled following your wishes. Do not let the state take ownership of your legacy, and do not leave it up to chance. To learn more, get in touch and secure the future of your legacy today.

Contact us today to schedule a consultation.

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