A Kentucky estate plan is not just about what happens to individuals’ assets when they die; it should also be about what happens to them and their assets if they become incapacitated.
These are the primary concerns of the estate planning tools known as power of attorney and living will directive.
Kentucky Uniform Power of Attorney Act
The person who creates the power of attorney is the principal, and he or she grants the authority to make certain decisions about his or her financial affairs to the agent. An agent may also be called an attorney-in-fact.
The power of attorney itself is a document that describes the responsibilities that the agent has if the principal becomes incapacitated. The agent may act on the principal’s behalf in these matters based on the instructions in the document.
Incapacity in this context means that the principal cannot manage his or her own affairs because of an inability to receive information, process it and communicate decisions, with or without the assistance of technology. The principal may also be considered incapacitated if he or she is missing, detained or incarcerated by law enforcement or in a foreign country and unable to return.
Kentucky Living Will Directive Act
The point of a living will or advance directive is to provide directions relating to a person’s health care wishes if he or she lacks the ability to make or communicate health care decisions such as consenting or denying consent for medical intervention, treatment or procedures. The document names a surrogate to make or communicate these decisions on behalf of the grantor.
The surrogate only has the authority to take on this role if the attending physician determines that the grantor does not have the ability to make the decisions on his or her own behalf.