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What You Need to Know About the Incapacity Trigger in Estate Planning

December 13, 2016

Filed under: Incapacity Planning — Neel Shah @ 9:15 am

Estate planning is about more than thinking of who will inherit your assets when you pass away. It is also important to think about who will manage your finances, your healthcare decisions, and your assets in the event that you become incapacitated. 

Incapacity planning raises the question of whether or not it makes sense to confer legal authority to another individual or wait until someone has lost capacity to manage their own affairs. Under a power of attorney and agent who has been named is capable of controlling a principal’s financial property and legal affairs other than those assets that are held inside a principal’s trust.

The fiduciary authority’s scope conferred on a power of attorney agent can be extremely narrow or very broad. The majority of estate planning attorneys today will draft broad powers of attorney to cover a wide range of unexpected circumstances. This is primarily because an incapacity event such as a disability is usually unexpected and a very narrowly tailored power of attorney can prevent the agent from being able to do what he or she needs to do. In the event that a power of attorney is effective after it is signed, this avoids delays and difficulties associated with determining the incapacity of the principal and therefore does not need to involve any third parties. To learn more about incapacity planning and how to use a trigger to structure one, consult with an experienced New Jersey estate planning attorney today.


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