Don’t Wait to Prepare Your Incapacity Documents

Do you remember the old Fram Automobile Auto Filter commercial? The mechanic in the ad said, “Pay me now or pay me later.” His point was clear: The customer could spend a little now for an oil filter, or a lot later for major engine repairs.

The same could be said for “incapacity documents.” You can either pay the attorney a few hundred now, or pay the attorney a few thousand later.

Incapacity documents, as I call them, are some of the least expensive services lawyers offer. They are composed of a Durable Power of Attorney for Financial Matters, Healthcare Power of Attorney, Living Will, and HIPPA Release.

The first two documents help ensure decision-making is minimally affected by mental incapacity. Mental incapacity can present itself naturally – as it does with dementia, for example – or it can be caused by medications. Either way, if you’re mentally incapacitated, unanticipated problems can arise that will affect your family for days, weeks, months or sometimes, years.  In advance of your need for them, you can get these incapacity documents prepared for a few hundred dollars.

Of course, there’s no law that requires that you have these documents prepared, so many people don’t have them. Some reports say that more than 70 percent of people age 55 and over do not have incapacity documents at the ready.

So, what’s the big deal? I’m glad you asked.

Consider this scenario: You’re in a car accident and you’re seriously injured. Despite receiving medication to ease your discomfort, you’re still in pain. In the meantime, your real estate agent calls to say you finally received an offer on the house you’ve had for sale. You really don’t want to make important decisions at a time like this, so you ask one of your adult children for help.

Your child speaks with the realtor and a deal is reached. You don’t recognize that it’s not a very good deal, because you’re not in your right mind (and by the way, in the meantime, you had a much-needed surgery and are on strong pain medications). So, you tell your child to go forward with the real-estate transaction.

When your child tries to enter the contract, the realtor asks for the power of attorney. But, you never created one, and there is nothing in writing that says that your child has the authority to sell the home.  If the realtor is ethical, and many are, s/he will be uncomfortable having you sign the document when you’re under the influence of so many pain meds.

So, what’s the solution at this point? You’ll have to seek a guardianship, the cost of which might be as much as $5,000; and that’s if no one fights over it. And, it’ll take four to six months.  


This is just one of many examples of the types of burdens people must carry for their loved ones when the loved one doesn’t want to pay a lawyer a few hundred dollars to prepare documents that can save thousands of dollars in the future.

Please don’t make this mistake. Have your incapacity documents professionally prepared by an experienced attorney right away.  That way you can pay now, and not pay much more later.  

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