Tips for Incapacity Planning

Tips for Incapacity Planning

Many of us are concerned about how are affairs will be managed in the event of our incapacity as a result of accident or debilitating medical condition.  Here are some tips to be sure your estate plan can provide for your dignity and privacy in the event of incapacity.


  1. Be sure you have a living trust. A will does not speak until one dies.  A living trust is just that; a living document that can provide instructions for your care in the event of incapacity.
  2. Be sure the list of successor trustees (money managers) you have identified in your trust is up to date.
  3. Be sure your living trust is funded. Once you establish a living trust, it is important to transfer your assets to the trust.  If an asset is not titled in the name of the trust, it cannot be managed by tour successor trustee.  PLEASE REMEMBER that RETIREMENT PLANS (IRA’s, 401(k)’s, 403(b)’s, profit sharing plans and the like) MUST remain in the name of the participant/employee.  If you were to transfer a retirement plan to your trust you would LOSE the tax deferral offered by your retirement plan.  Also, we do not place autos in the trust.
  4. Be sure you have an Advance Health Care Directive with and that the health care agents you have identified in the Directive are up to date. Be sure you have an up to date HIPPA Authorization so that your health care agents can talk with your doctor if you are not able to do so.
  5. Be sure you have an up to date Power of attorney for finances. Not all assets go in the trust and not all our financial affairs involve our assets.  An agent on a Power of Attorney for finances can deal with retirement plans (remember, these do not get retitled to your trust), credit cards, tax matters, the post office, your pets and miscellaneous matters such as club memberships.


If you have thought through and prepared a plan, you will have a team of trusted persons and/or institutions in place ready and able to assist you in the event of your incapacity.  Your privacy and dignity are important and you need to make sure you have appropriate planning in place. Our attorneys will be happy to meet with you to review and update your estate plan and its incapacity planning components.

If you want to learn more on incapacity planning contact us at:

2070 Pioneer Court
San Mateo, CA 94403
Tel 650-572-7933
Fax 650-572-0834

McDowall Cotter provides comprehensive legal services in three areas of practice: civil litigation; business; and wealth preservation. To learn more visit us at We are a San Mateo based law firm and for more than 50 years, McDowall Cotter’s chief objective has been to deliver exemplary legal services that are personalized, effective and efficient.