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GermanLawGroup

Estate Planning & Medicaid Attorneys in Grand Forks , North Dakota

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Home » Resources » Frequently Asked Questions » Incapacity Planning FAQs

Incapacity Planning FAQs

    • What can I do if a loved one become incapacitated but failed to plan ahead for the possibility?

    • 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.

    • How can a revocable living trust help me with incapacity planning?

    • A revocable living trust is often used in an incapacity plan. When used to help plan for the possibility of incapacity, a revocable living trust 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 advanced directive and how can one help?

    • 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. North Dakota recognizes two types of advanced directives, including:

      • Power of Attorney for Health Care which allows you to appoint someone as your Agent to make health care decisions for you, including those involving life-sustaining treatment, in the event you are unable to make them yourself because of you incapacity at some point in the future.
      • Health Care Instructions which is North Dakota’s version of a Living Will. In this you can state your wishes with regard to health care in the event you can no longer speak for yourself.

    • Will a Power of Attorney take care of these 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.

    • What is incapacity planning?

    • Incapacity planning utilizes 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.

    • Won’t my spouse or another family member automatically be able to step in and make decisions for me if I can’t make them?

    • 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.

    • What happens to my assets if I become incapacitated without a plan in place?

    • On a daily basis, you control what happens to your assets; however, if you were to become incapacitated tomorrow someone would have to take over control of those assets. In the absence of an incapacity plan that dictates who that person will be, you have no way of knowing who will end up in control of your assets. More than one person could feel that they have the right to step in and take control, resulting in costly litigation.

    • Do I really need to plan for incapacity if I’m still young and healthy?

    • Yes, you do. In fact, if you are relatively young and healthy you probably need to be more worried about a period of incapacity than you do death. Up to about 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. Because you undoubtedly care what happens to you and your assets if incapacity does strike, it is imperative that you plan for that possibility.

Contact Us

If you have additional question or concerns regarding how to incorporate incapacity planning into your overall estate plan, contact the experienced North Dakota estate planning attorneys at German Law by calling 701-738-0060 to schedule an appointment.

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Client Review
August 24, 2020
    

Needed to come in to get specific advice for our needs. The attorney spoke to us in terms we could understand, coming to our level and did not make up feel uncomfortable. They were very considerate and caring. We didn’t feel rushed. We felt like they cared and knew what they were doing.

C.P., Minnesota
Client Review
August 24, 2020
    

We were wonderfully satisfied. Wayne did an outstanding job of explaining, diagramming and answering questions and concerns.

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August 24, 2020
    

They were courteous, efficient, knowledgeable, and trustworthy.

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August 24, 2020
    

Very helpful. Our children and us are are confident in your group.

-Anonymous, Fargo, North Dakota
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August 24, 2020
    

"Very professional, covered all, expertise, friendly, peace of mind now."

- Anonymous, North Dakota
Client Review
August 24, 2020
    

So much of a client's high or low opinion of an organization depends on their welcomed feeling. I felt that every time I visited the office, every person I talked with listened and took action on my concern or questions! They were also very friendly.

~J.R., Grand Forks, ND
Client Review
August 24, 2020
    

From phone calls to signing the final documents I was treated with respect, kindness, and understanding by Wayne & Jenn. Every business that wants their business represented well should have someone like Jenn & Wayne. They both made me feel relaxed and assured I was at the right place at the right time at this time in my life. 

~ Deborah Rucinksi, North Dakota 
Client Review
August 24, 2020
    

All of the paperwork was completed in a timely matter. Wayne was very good in explaining the trust to us. 

~Anonymous
Client Review
August 24, 2020
    

Thank you for taking care of my finances after I am gone. I worried about probate once; hopefully this has been solved. Everyone was very polite and helpful. Thank you Katie for answering my questions, and also Jenn.

- Anonymous
Client Review
August 24, 2020
    

This Avvo rating is killer and so deserved! You are the best brother! The only thing is I think the 10 rating is too low, in my book you go to 11! Congratulations on the award, you should be very very proud. See you at your Holiday party, thx for the invite.

Anthony G., Los Angeles, CA
Client Review
August 24, 2020
    

Everyone at German Law was helpful and pleasant. I felt good about my decision, I thought I was doing the right thing for myself & my family. Wayne took his time and didn't rush, which is good because a lot of this can be over people's heads.

A.W., Red Lake Falls, MN
Client Review
April 15, 2021
    

Excellent

Very interesting, informative and valuable information and ideas.

Valuable information.

RP
Client Review
April 15, 2021
    

5 STARS! Thanks for allowing this to be on a webinar! Very interested in this topic.

Great Estate Planning Guide

SD
November 25, 2022
    

John provided very short turn-around time that we needed. He built an amortization schedule that really met our needs. He was responsive and very easy to work with! Quick and easy!

 

Cammy was also very helpful and professional!

November 25, 2022
    

Really Liked it.
Assisted by John Oelke

November 25, 2022
    

Excellent!

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