Planning for incapacity is an essential part of the estate planning process. At Karen S. Gerstner & Associates, we guide you through incapacity planning to ensure that you and your assets are fully protected in the event of temporary or permanent incapacity during your lifetime. Statistically, at most ages, individuals are more likely to become disabled in some way than to die. So, incapacity planning is extremely important. We apply high-level expertise and over 40 years’ experience in estate and trust law to provide you with the peace of mind and confidence that you have the crucial legal documents in place to address unpredictable potential incapacity in the future.

Our Estate Planning Expertise and Personal Attention to Clients

In assisting clients with incapacity planning, Karen S. Gerstner & Associates offers an exceptional level of expertise that sets the firm apart from other estate planning practitioners. Since 1986, Karen Gerstner has been Board Certified in Estate Planning and Probate Law by the Texas Board of Legal Specialization. She is also a Fellow of the American College of Trust and Estate Counsel, an elite designation reserved for lawyers who demonstrate the highest level of professionalism and expertise in wills and trusts, estate planning and probate, and tax law.

We concentrate our practice exclusively in estate planning and probate, which enables us to offer expertise comparable to that of a much larger law firm, while providing a level of personal service that may not be available at a big firm. In applying our legal expertise to assist clients with their legal needs and goals, we maintain a commitment to the highest level of personal service to every client. We thoroughly address every question and concern, provide services in a timely manner, communicate complicated concepts in terms that are easily understood, and treat each client with dignity at all times. We strive to build long-term client relationships based on mutual trust and respect.

The success of our practice is demonstrated by the fact that most of our clients come to us through referrals from financial advisors, trust officers, accountants, and other clients.

Understanding Incapacity

The Texas Estates Code defines an incapacitated adult as a person “who, because of a physical or mental condition, is substantially unable to provide food, clothing, or shelter for himself or herself; care for the person’s own physical health; or manage the person’s own financial affairs.” Incapacity may result from many different causes, including an unexpected accident or injury, sudden medical emergency, and other health-related issues. It may be temporary or permanent and may occur suddenly without warning or develop gradually over a period of time.

The goal of incapacity planning is to protect you and your financial assets if future incapacity results in you being unable to care for yourself, manage your finances, and make your own health-related decisions. By planning for incapacity, you ensure that people you trust will provide your care, manage your financial affairs, and make prudent decisions on your behalf.

If you do not plan in advance and you become incapacitated, it may be necessary for one of your family members to petition the court for a determination of your mental capacity. That type of filing triggers the guardianship laws. If the judge determines you are incapacitated, the judge will appoint someone to manage your assets and someone to see to your physical and health care needs. The judge in the guardianship case may not appoint the person(s) you would choose to handle these matters.

Guardianship proceedings can, in some circumstances, cause disruptions in a family because of disagreements over who should make healthcare decisions and who should handle financial matters for an incapacitated loved one. In addition, a court-supervised guardianship proceeding is one of the most expensive and cumbersome management arrangements applicable to your physical person and your assets under Texas law.

Legal Documents For Incapacity Planning

Incapacity planning involves putting legal documents in place to designate persons to make decisions on your behalf in the event of incapacity and to express your wishes concerning specific decisions. At Karen S. Gerstner & Associates, we carefully guide you through incapacity planning and explain each document, customize the provisions to your personal circumstances, wishes, and goals, and help you to make fully informed decisions regarding the choices available to you. We thoroughly address all your questions and concerns to make certain that you are comfortable and confident that the documents fully express your wishes and goals.

The legal documents that are part of an incapacity plan include:

Durable Power of Attorney

In a durable power of attorney, you designate a person you trust to manage your finances and make financial decisions on your behalf if you become incapacitated. In some estate plans, a living trust may also be used to address the financial aspects of incapacity planning.

Advance Directives

Texas law provides for several types of documents known as advance directives, medical directives, or healthcare directives. These documents designate an individual you trust to make medical decisions on your behalf and express your wishes about the healthcare you receive in the event of incapacity. Advance directives include:

  • Medical Power of Attorney: You authorize a named individual to make medical and health care decisions on your behalf if you become unable to make them yourself. You may also express your wishes concerning your medical care in the event of incapacity. This document is an essential part of planning for incapacity.
  • Directive to Physicians and Family or Surrogates: You express your wishes concerning provision, withdrawal, or withholding of medical care in the event of a terminal or irreversible condition. This document is sometimes referred to as a living will, but it is unrelated to the will (last will and testament) that is part of your estate plan.

HIPAA Authorization

Federal law protects the privacy of your medical information. For individuals designated to make health care decisions in your advance directives, a HIPAA Authorization provides access to your medical information and records, so they can be fully informed about your healthcare circumstances. You can also name other individuals besides your medical agents as Authorized Persons per HIPAA who can receive your protected health information from your healthcare providers. A HIPAA Authorization is an information-disclosing document and not a decision-making document.

Declaration of Guardian

In Texas, you may use a declaration of guardian to designate the person(s) who should be appointed by the court as: 1) guardian of your estate to possess and manage your assets, property, and finances, and 2) guardian of your person to make decisions concerning your care, supervision, and personal protection, including your needs for clothing, food, and shelter. When an individual has the other usual incapacity planning documents in place, it should not be necessary for a legal guardian of your estate or person to be appointed. However, another use of this document is to inform the court of the persons who you do not want to be appointed as your guardian. Your wishes in that regard are binding on the court.

Schedule a Consultation With Us About Incapacity Planning

At Karen S. Gerstner & Associates, we welcome inquiries concerning incapacity planning. We serve clients throughout the Houston metropolitan area and elsewhere in Texas. Schedule a consultation by calling us at (713) 520-5205 or using the online contact form.