By Kirsten Howe, Esq., California State Bar Certified Specialist in Estate Planning, Trust, and Probate Law

When you hear estate planning, you immediately think about planning for your death—what happens after you pass away. While that is true, there is an even more critical possibility you should be planning for: incapacity.

What is incapacity planning? Incapacity planning is the process of legally designating who will make financial, medical, and personal decisions on your behalf if you become unable to do so yourself due to illness, injury, or cognitive decline.

Incapacity planning is one of the most important legal protections you can implement because, without it, things can be a mess for you and your family.

Why incapacity planning matters more than you think: If you die without an estate plan, there is a back-up plan. It might take more time and cost more money, but an estate will be settled through probate.

However, if you become incapacitated without a plan, you don’t have time to wait. You need support and care right away, and on top of that, you don’t want to waste money on court proceedings and attorney fees. If you’re incapacitated, you want your money to be spent on your care—not on expensive conservatorship proceedings.

Having an incapacity plan is critical. Everyone needs one, whether you’re 26 or 75.

According to the U.S. Department of Health and Human Services, nearly 70% of people turning 65 today will require some form of long-term care in their lifetime. Incapacity can strike at any age through accidents, strokes, dementia, or sudden illness.

To help highlight the importance of this planning, we have developed this comprehensive resource page filled with tips, strategies, and expert advice on implementing the right incapacity plan for you. If you have any questions or need help getting started, we are only a phone call away. You can reach us by calling 925.943.2740 today.

You have worked hard to achieve success. Now you want to make sure your assets are protected, your golden years are spent in comfort, and your loved ones are well taken care of after you are gone.

At Absolute Trust Counsel we dedicate ourselves to helping individuals and families from a wide range of social and economic backgrounds do just that. Together, we will create an estate plan for you that protects your hard-earned assets and your legacy and ensures your children’s inheritance is safe from creditors, predators, and even their own inability to handle an inheritance alone.

The Absolute Trust Counsel team is pleased to provide a library of free articles, checklists, guidebooks and more to address the most common estate planning questions and concerns in practical, easy-to-understand language. We have authored each publication as part of our commitment to provide you with all of the tools you’ll need to educate yourself about the estate planning and make the planning process pleasant, convenient and efficient.

Guidebook 1:

A Will is Not Enough – Securing Your Legacy with Estate Planning

Life can change in an instant. A will is not enough to be prepared. Get free access to our actionable guidebook and start protecting your legacy today. Click here to download now. >

Guidebook 2:

Estate Planning – Beyond the Basics

The Essential Guide For Estate Planning Beyond the Basics. Learn how to comfortably define gray areas and assess your own unique needs to effortlessly build a secure future now. Click here to download now. >

Guidebook 3:

An Introduction to Family Trusts

Building your estate plan couldn’t be easier. Get our free introductory guide to the number one used estate planning tool, family trusts, and understand exactly how we plan to protect your family. Click here to download now. >

Guidebook 4:

Trust Administration – What Every Trustee and Beneficiary Needs to Know

Are you a Trustee or Beneficiary? Trust administration is much more work than it seems. Let us help you navigate the complicated steps required by law. Click here to download now. >

Guidebook 5:

Interviewing Tips – What to Ask A Prospective Estate Planning Attorney

Looking for the right estate planning attorney? Let us empower you to have the final word. Get a free copy of our interview tips straight to your inbox. Click here to download now. >

Guidebook 6:

Medi-Cal Planning from Start to Finish

Reference Guide 3:

Medi-Cal Resource Limits Handout

Do You Think You Have Too Many Assets to be Eligible for Medi-Cal? We Can Help. Download Our Free Tool to See Exactly How Your Assets Factor In. Click here to download now. >

Understanding incapacity planning is easier when you can hear real-world examples and expert insights explained in plain language. Our Absolute Trust Talk podcast features in-depth conversations with Kirsten Howe and guest experts who break down complex legal topics into actionable advice you can use.

Below, we’ve curated our most valuable episodes on incapacity planning, healthcare directives, conservatorships, and protecting yourself and your loved ones when you can no longer make decisions for yourself.

Episode 190: Your Healthcare Voice (Part 2): Emergency Medical Orders

Building on the first episode, Kirsten and Ariana explain the critical medical orders that complement your legal healthcare directives: DNR (Do Not Resuscitate) orders and POLST (Physician Orders for Life Sustaining Treatment) forms.

What you’ll learn:

• What DNR orders are and who can sign them
• The “paramedic dilemma” – why emergency responders MUST perform CPR unless they see a DNR
• The shocking “lying on the sidewalk” scenario that reveals critical legal requirements
• Why your DNR needs to be accessible (it’s not tattooed on your forehead)
• How POLST forms go beyond DNR with comprehensive medical orders
• Why you need DNR, POLST, AND healthcare directives working together

These are doctors’ orders, not legal documents attorneys can prepare – but understanding how they work with your legal plan is critical.

Visit the Show Notes Page for Episode 190: Your Healthcare Voice (Part 2): Emergency Medical Orders

Episode 189: Your Healthcare Voice: Understanding Advanced Directives

In this recent episode, Kirsten Howe and Associate Attorney Ariana Flynn tackle one of the most misunderstood aspects of estate planning: Advanced Healthcare Directives. This is essential listening for anyone who wants to ensure their medical wishes are honored.

What you’ll learn:

• Why everyone 18 and older MUST have an Advanced Healthcare Directive (parents lose all legal authority over adult children’s medical decisions at age 18)
• The shocking truth about what happens if you’re incapacitated without proper documents
• California-specific HIPAA requirements that could invalidate your documents
• The difference between legally binding authority and just being a “preferred contact”
• Why your healthcare directive needs to meet specific formatting requirements (including 14-point font rules)

This episode provides essential information that could protect you and your loved ones when it matters most.

Visit the Show Notes Page for Episode 189: Your Healthcare Voice: Understanding Advanced Directives

Episode 136: Guardianship Explained: Essential Insights for Effective Estate Planning

Sometimes, guardianship is necessary—and when it is, it’s best to be prepared. In this episode, attorney Lara Heisler joins Kirsten and Madison to discuss guardianship for minor children and what happens when parents become incapacitated.

What you’ll learn:

• The steps in obtaining guardianship, from emergency custody orders to navigating the paperwork
• What guardianships actually look like (beyond just signing documents naming guardians)
• How to ensure the child’s wishes are considered in a guardianship case
• What happens if a child has no relatives in the US
• The court’s process for ensuring a guardian is someone the child will be safe with
• Why uncomfortable family conversations when life is comfortable lead to better outcomes when life gets uncomfortable

Lara has been working with conservatorship and guardianship cases for over 25 years, making her the ideal person to discuss this critical topic.

Visit the Show Notes Page for Episode 136: Guardianship Explained

Episode 088: Incapacity Failures: Plan Ahead So Your Plan Works for You

Though it might seem like you’ve got everything covered within your trust document, estate planning is not just about what happens after you die. Issues can also arise in the event that you become incapacitated. Over the years, we have seen all sorts of problems because not enough attention was paid to incapacity planning.

What you’ll learn:

• The types of trust failures and challenges experienced from lack of incapacity planning
• Why delays caused by inadequate planning can cause your health and well-being to suffer
• How confusion and disagreement among family members leads to more time and money in court
• How to ensure your current plan makes it quick and easy for others to step in and take over on your behalf
• Real-world examples of what goes wrong when incapacity planning is inadequate

In this episode, attorneys Kirsten Howe and Madison Gunn sit down to discuss what can go wrong when you haven’t properly planned for incapacitation—and how to avoid these pitfalls.

Visit the Show Notes Page for Episode 088: Incapacity Failures: Plan Ahead So Your Plan Works for You

Episode 048: The Elder Care Journey – Part 2: Incapacity Planning

In this essential episode, Kirsten takes a deep dive into real-life scenarios where incapacity planning has been vital to taking proper care of a loved one who can no longer make decisions for themselves legally.

What you’ll learn:

• When does cognitive impairment legally allow another person to step in and make decisions?
• What are the different kinds of Powers of Attorney and which do you need?
• Why is it critical to have a written estate plan and Power of Attorney in place?
• What happens if an elderly parent makes changes to their estate plan when they may lack legal capacity?
• What to do when a bank won’t accept your Power of Attorney (even with proper documentation)

No matter what type of plan you have in place, incapacity is something everyone should address because you just don’t know when something could happen.

Visit the Show Notes Page for Episode 048: The Elder Care Journey – Part 2: Incapacity Planning

Episode 024: Conservatorships: Powerful Protective Proceedings

What happens when you DON’T have an incapacity plan in place? Often, your family is forced into costly, time-consuming conservatorship proceedings. In this episode, guest Konstantine “Kosta” Demiris joins Kirsten to discuss all things conservatorship.

What you’ll learn:

• Why clients enter into conservatorship proceedings and when they can be useful
• How conservatorships work in California and what the process looks like
• Why you should do your homework before pursuing a conservatorship
• How conservatorship proceedings can go wrong
• Other possible avenues to explore outside of conservatorship proceedings
• Why proper incapacity planning can help your family avoid this costly court process entirely

Kosta has tried hundreds of cases involving conservatorship, guardianship, and elder abuse, making him the ideal expert to explain when conservatorships are necessary—and how to avoid them through proper planning.

Visit the Show Notes Page for Episode 024: Conservatorships: Powerful Protective Proceedings

• • Natural Light May Benefit Dementia Patients
  • Use Long-Term Care Insurance as Intended
  • Knowing Alzheimer’s Podcast
  • Finding the Right Home Care Approach Podcast
  • Assisted Living Industry Struggles to Accommodate Growing Dementia Population
  • Making Bequest to Caregivers Fraught with Problems
  • Your Healthcare Preplanning Toolbox
  • Protect Vulnerable Adults from Scams
  • Expert Advice on Geriatric Care with Linda Fodrini-Johnson

Do You Have a Plan for Your Business if You Become Incapacitated? Watch this Presentation to Learn More.

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