When people think about estate planning, they usually focus on one document: their will.
But according to estate lawyer Bruce Solloway, the documents that often have the greatest impact on your family are the ones that come into effect while you're still alive.
In this episode, Melissa, Joanne, and Bruce explore the often-overlooked world of incapacity planning, including powers of attorney, representation agreements, and the difficult decisions families face when someone can no longer make decisions for themselves.
Using the metaphor of a safety net, they explain why planning for incapacity isn't about expecting the worst. It's about protecting your loved ones from unnecessary stress, legal complications, and costly government involvement.
Here are the key takeaways.
Lawyers vs. Notaries: What's the Difference?
One of the most common questions people ask is whether they should use a lawyer or a notary for estate planning.
Bruce's perspective is straightforward.
While notaries can assist with certain legal documents, estate planning often involves legal advice, family dynamics, tax considerations, and future planning decisions that extend beyond simply filling out forms.
Many clients arrive assuming they know exactly what they need. Often, after a deeper conversation, they discover there are additional considerations they hadn't thought about.
Estate planning isn't just about preparing a document. It's about understanding how that document fits into your overall situation.
That's where legal advice becomes valuable.
Why Incapacity Planning Is So Important
A will only applies after death.
A power of attorney and representation agreement apply while you're alive.
Bruce explains that incapacity planning is one of the few areas where failing to make a decision means someone else may end up making decisions for you.
And you may not like the outcome.
Without proper documents in place, decisions can become subject to government oversight, court applications, and expensive legal processes during what is already a difficult time for families.
In many cases, the financial and emotional costs far exceed the cost of preparing the documents beforehand.
What Happens If You Lose Capacity Without a Power of Attorney?
One of the most eye-opening parts of the conversation involved the consequences of becoming mentally incapable without a power of attorney.
If major assets remain in the name of an individual who loses capacity, family members cannot simply step in and manage those assets.
Instead, they may need to apply for a committeeship order through the courts.
This process often includes:
- Assessments by medical professionals
- Court applications
- Involvement of the Public Guardian and Trustee
- Ongoing reporting requirements
- Significant legal costs
- Lengthy delays
Bruce estimates that obtaining a committeeship order can take four to six months and may cost $10,000 to $15,000 or more.
By comparison, preparing a power of attorney is relatively inexpensive and can prevent these complications entirely.
The Public Guardian and Trustee: Protection With Limitations
The Public Guardian and Trustee exists to protect vulnerable individuals who can no longer manage their own affairs.
While their role is important, their mandate focuses on protecting the individual, not necessarily preserving family flexibility.
As Bruce explained, this can sometimes create unintended consequences.
For example, if a home must be sold to fund care costs and no planning has been completed, restrictions and oversight may limit how funds are managed, creating additional challenges for spouses and family members.
The goal of incapacity planning is not to avoid protection.
The goal is to give trusted individuals the authority to act before government intervention becomes necessary.
Powers of Attorney: One of the Most Valuable Documents You Can Have
Bruce describes powers of attorney as relatively inexpensive documents that can save families enormous stress.
A power of attorney allows someone you trust to:
- Manage banking
- Pay bills
- Handle investments
- Deal with property matters
- Sign legal documents
- Manage financial affairs if you become incapable
Most importantly, it allows decisions to continue without the delays and costs associated with court involvement.
As Bruce puts it:
"If it's going to keep you awake at night, just do the power of attorney."
What Happens During Divorce?
Many people assume that separation or divorce automatically cancels a power of attorney.
That's not the case.
A power of attorney generally remains effective until it is formally revoked.
This means individuals going through separation should review their legal documents and make updates where appropriate.
Failing to do so could leave a former spouse with decision-making authority long after the relationship has ended.
Choosing the Right Person Matters
One of the biggest estate planning mistakes is focusing only on who you trust and not whether they're realistically able to do the job.
Bruce encourages clients to consider:
- How close the person lives
- Whether they have the time
- How they get along with other family members
- Their ability to handle conflict
- Their willingness to take on responsibility
For executors, geography can become a major issue.
For powers of attorney and representation agreements, availability and proximity often become equally important.
The best choice isn't always the oldest child or the most successful child. It's often the person best positioned to carry out the role.
Representation Agreements: More Than Medical Decisions
Many people assume a representation agreement is simply a healthcare document.
In reality, it can be much broader.
A representative may help make decisions about:
- Healthcare treatment
- Living arrangements
- Personal care
- Daily activities
- Visitors
- Religious involvement
- End-of-life decisions
These are deeply personal matters.
That is why Bruce stresses the importance of choosing someone who understands your wishes and is prepared to advocate for you.
The Importance of Having Difficult Conversations
One of the strongest messages from this episode is simple:
Don't leave your loved ones guessing.
Bruce regularly asks clients:
- Does your representative know they've been appointed?
- Have you explained your wishes?
- Have you discussed end-of-life care?
- Have you talked about quality of life decisions?
Many people haven't.
These conversations can be uncomfortable, but they often become one of the greatest gifts you leave behind.
When family members already know your wishes, they can make difficult decisions with confidence instead of uncertainty.
Advocacy Is Part of the Job
A particularly valuable insight from Bruce was that representatives don't simply make decisions.
They advocate.
A good representative:
- Communicates with healthcare providers
- Ensures wishes are respected
- Monitors quality of care
- Speaks up when necessary
- Stays involved over time
Representation is not a one-time task.
For some families, it may become a responsibility that lasts for years.
That's why understanding the commitment involved is so important.
Can You Appoint a Professional Instead?
Technically, yes.
You can appoint professionals or organizations in some circumstances.
However, Bruce generally believes these decisions are best handled by someone who:
- Knows you well
- Understands your values
- Cares about your wellbeing
- Can exercise judgment based on your wishes
Estate administration may be delegated to professionals.
Personal healthcare decisions are often far more difficult to outsource.
Final Thoughts
Estate planning isn't just about what happens after you're gone.
It's about what happens if you're still here but unable to speak for yourself.
A power of attorney can protect your finances.
A representation agreement can protect your healthcare wishes.
Together, these documents help ensure that the people you trust, not the courts, make decisions on your behalf.
As Bruce reminds us, the hardest conversations are often the most important ones.
The best time to talk about incapacity planning is not during a crisis.
It's while everyone is healthy, capable, and able to make informed decisions.
Frequently Asked Questions
What is a power of attorney?
A power of attorney allows someone you trust to manage your financial and legal affairs if you become unable to do so yourself.
What is a representation agreement?
A representation agreement allows a trusted person to make healthcare and personal care decisions on your behalf.
What happens if I lose capacity without a power of attorney?
Your family may need to apply to the court for a committeeship order, which can be expensive and time-consuming.
Does divorce automatically cancel a power of attorney?
No. A power of attorney generally remains valid until it is formally revoked.
Should I tell someone if I've appointed them?
Absolutely. One of the best gifts you can give your loved ones is a clear understanding of your wishes and responsibilities before they need to act.