• Skip to primary navigation
  • Skip to main content
  • Skip to primary sidebar
  • Skip to footer
  • Home
  • WHO WE ARE
    • About Our Firm
    • Attorney and Staff Profiles
    • News and Events
  • Areas We Serve
    • Essex County, MA
      • Andover
      • North Andover
    • Hillsborough County, NH
      • Manchester
      • Nashua
    • Middlesex County, MA
      • Concord
      • Lexington
      • Wakefield
      • Winchester
      • Woburn
    • Rockingham County, NH
      • Exeter
      • Londonderry
      • Salem
  • Services
    • Asset & Business Planning
    • Elder Law & Medicaid Services
    • Estate And Gift Tax Figures
    • Family-Owned Businesses & Farms
    • Legacy Planning Services
    • LGBTQ Estate Planning
    • Loss Of A Loved One
    • Pet Planning
    • Power Of Attorney
    • Probate and Trust Administration
    • SECURE Act
    • Special Needs Planning
    • Young Families
  • Elder Law
    • Coping with Alzheimer’s
    • Hospice Care
    • Medicaid Planning
    • Nursing Home Planning
  • Resources
    • Elder Law
      • Elder Law & Medicaid Definitions
      • Elder law reports
      • Elder Law Resources
        • Elder Law Resources – Londonderry, New Hampshire
        • Elder Law Resources North Andover, Massachusetts
        • Nashua, New Hampshire Elder Law Resources
        • Woburn, MA Elder Law Resources
    • Estate Planning
      • Estate Planning Articles
      • Estate and Gift Tax Figures
      • Estate Planning Checkup
      • Estate Planning Definitions
      • Estate Planning Reports
        • Advanced Estate Planning
        • Basic Estate Planning
        • Estate Planning for Niches
        • Trust Administration
      • Incapacity Planning Definitions
      • Is Your Estate Plan Outdated?
      • Top 10 Estate and Legacy Planning Techniques
    • Free Estate Planning Worksheet
    • Frequently Asked Questions
      • Asset Protection Planning
      • Business Planning
      • Charitable Gifting
      • Estate Planning
      • Elder Law
      • Frequently Asked Questions for Families Without an Estate Plan
      • Incapacity Planning
      • Legacy Wealth Planning
      • LGBTQ Estate Planning
      • Medicaid Planning
      • Trust Administration & Probate
      • Wills and Trusts
    • Medicaid Calculator
    • Newsletters
    • Pre Consultation Form
    • Presentations
    • Probate and Trust Administration
      • Bereavement Resources
      • How to Know if You Need Extra Help With Your Grieving
      • Loss Of A Loved One
      • Probate Resources
        • Nashua, New Hampshire Probate Resources
        • Probate Resources – Londonderry, New Hampshire
        • Probate Resources – North Andover, MA
        • Probate Resources – Wakefield, Massachusetts
        • Woburn, MA Probate Resources
      • The Mourner’s Bill of Rights
      • Things You Need To Do When a Loved One Passes Away With a Trust
      • Things You Need To Do When a Loved One Passes Away With a Will
      • Trust Administration & Probate Definitions
    • Published Books
  • Seminars
    • Live Seminars
    • Online Seminars
  • Videos
  • Contact Us
  • Blog
  • Reviews
    • Our Reviews
    • Review Us

DeBruyckere Law Offices, PC

Serving Southern New Hampshire & Essex Country, Massachussetts

Call us today(603) 894-4141

(978) 969-0331

Online Seminars
Attend Free Seminar
Home » Resources » Frequently asked questions » Incapacity Planning FAQs

Incapacity Planning FAQs

      • Is there anything I can do if a loved one becomes incapacitated and they failed to plan ahead?

      • If you have a loved one who has become incapacitated, as a result of Alzheimer’s or simply the natural aging process, seeking guardianship may be your only option if you wish to keep them and their assets safe. A guardianship is a relationship established by a court of law between the person who needs help, referred to as the “ward,” and the person or entity named by the court to help the ward, known as the “Guardian.” Considered the option of last resort because of its restrictive nature, courts will only approve a guardianship if convinced it is absolutely necessary. If you find yourself worried about a loved one, consult with an experienced guardianship attorney about your legal options.

      • Is a revocable living trust a helpful incapacity planning tool?

      • One of the most commonly used incapacity planning tools is a revocable living trust. When used to plan for the possibility of incapacity it works by allowing you to appoint yourself as the Trustee of the trust and appoint someone of your choosing as the successor Trustee. Your estate assets are then transferred into the trust. Because you are the Trustee, you continue to control those assets just as before; however, if you become incapacitated the successor Trustee (chosen by you) takes over as Trustee, thereby shifting control of your assets to the person of your choice without the need for court intervention. Moreover, when you recover you can resume your position as Trustee as if nothing happened. Finally, because the trust is revocable, you can move assets in and out of the trust with ease and even replace the successor Trustee if you wish to do so at any time.

      • What is an Advance Directive?

      • An advance directive is a legal document that allows you to plan ahead and make your own end-of life wishes known in the event that you are unable to communicate those wishes at some later time and/or appoint someone to make decisions for you.  State law dictates what types of advance directives are recognized in the state. New Hampshire recognizes two types of advanced directives, including:

        • Power of Attorney for Health Care which allows you to appoint someone as your Agent to make decisions for you in the event you are unable to make them yourself because of you incapacity at some point in the future. Your Agent will have the authority to consent, refuse to consent, or withdraw consent to medical treatment, and may make decisions about withdrawing or withholding life-sustaining treatment.  Your Agent cannot consent to commitment to a state institution, sterilization, or termination of treatment if you are pregnant and if the withdrawal of that treatment is deemed likely to terminate the pregnancy, unless the treatment will be physically harmful to you or prolong severe pain which cannot be alleviated by medication.
        • A New Hampshire Declaration which is New Hampshire’s version of a Living Will. In New Hampshire, a living will is very limited in scope, only allowing you to make a statement that you want life-sustaining treatment withheld or withdrawn if you are near death or permanently unconscious.

      • Does executing a Power of Attorney solve my problems?

      • A Power of Attorney is a legal agreement that allows you (the “Principal”) to grant another person (your “Agent”) the legal authority to act in your place in legal matters. That authority can be general, allowing your Agent almost unfettered power to act on your behalf, or limited, only granting your Agent the authority to act on your behalf in specific situations or for a designated period of time. While a Power of Attorney can be a helpful incapacity planning tool, it has some drawbacks, including the risk that third parties won’t accept your Agent’s authority. It also has some limitations because even a general POA won’t usually cover all situations. Most states, for example, require you to execute a specific type of document to give someone the legal authority to make healthcare decisions for you.

      • What can incapacity planning do to help?

      • By incorporating an incapacity plan into your comprehensive estate plan you are able to use legal strategies and tools that collectively determine who will control your assets and make important decisions for you in the event you are ever incapacitated. It allows you to make crucial decisions now instead of a judge making them for you later or deciding who will make them for you.

      • Who will control my assets if I become incapacitated?

      • Who will control your assets during a period of incapacity creates the same dilemma as who will make healthcare decision for you – and may cause the same divide within your family. In the absence of a plan that gives someone the legal right to control your assets, a court will likely be forced to appoint someone. That person may – or may not – be someone you would want taking over control of your assets.

      • Won’t my spouse or another family member automatically be able to step in and make decisions?

      • Many people fail to plan for incapacity because they mistakenly believe this to be the case. The reality is that even if you are married there is no guarantee that it will be your spouse or a family member making serious, even life or death, healthcare decisions for you if you are unable to make them. Sometimes, more than one family member believes that he/she should be the one making those decisions.  The result is a court battle that could result in a family feud that leaves the family divided.

      • Why do I need to plan for incapacity?

      • Do not make the common mistake of associating incapacity with the elderly. Incapacity is very much a concern for the young as well. In fact, prior to around age 40 you are three times more likely to become incapacitated than you are to die. One in four of today’s 20-year-olds can expect to be out of work for at least a year because of a disabling condition before they reach retirement age. If you care what happens to you and your assets in the event incapacity does strike, you need to plan for the possibility.

Contact Us

If you have additional questions or concerns related to incapacity planning, contact the experienced New Hampshire incapacity planning attorneys at DeBruyckere Law Offices by calling (603) 894-4141 to schedule your consultation.

Download our free Estate Planning Worksheet

There's a lot that goes into setting up a comprehensive estate plan, but with our FREE worksheet, you'll be one step closer to getting yourself and your family on the path to a secure and happy future.
  • This field is for validation purposes and should be left unchanged.

Follow Us

  • Facebook
  • Twitter
  • Linkdin
  • Youtube

Testimonials

I felt complete trust and confidence in Dan DeBruyckere and his staff. They have a caring, low-key approach and there is no pressure to add products to the estate plan; rather he makes me aware of changes in the law, etc. I always learn something new to assist me in our planning!

LN

Your seminar was the only seminar we attended without financial advisors wanting to invest our money instead of protecting it! The information this firm provided was easy to understand even though it is a difficult topic. Thank you for all of your help!

HR

We both felt so comfortable in they way our Estate Planning was handled. We felt like someone was watching out for our best interest. Everyone we worked with at the firm was thorough, and explained everything in a way where we could walk away feeling like everything was complete.

RS

A truly great experience all the way through. Felt like we were a part of the family! Thank you.

LW

We could not have picked a more qualified law firm. Everyone that we came in contact with made us feel at ease.

Happy Client

DeBruyckere Law Offices, PC footer

Connect with Us

  • Facebook
  • Twitter
  • Linkdin
  • Youtube
footer-logo

© 2022 DeBruyckere Law Offices
All Right Reseved.

Attorney Advertisement

© 2022 American Academy of Estate Planning Attorneys, Inc.