When You Can No Longer Decide for Yourself: Incapacitation Explained

When planning for your future, it is important to make decisions now to make your wishes clear should you become unable to make decisions down the road. Many people become incapacitated at some point during their life, either temporarily or permanently, which is why it is important to plan for this possibility now. This post discusses incapacitation so you have the information needed to include it as part of your overall estate planning efforts.

Who Determines Incapacitation

There are some times when it is clear that someone is incapacitated. For example, if you are in a coma due to an accident or disease, there is no doubt that as long as you remain in the coma, you are incapacitated and can’t make decisions on your own. In many other cases, it is not so easy. As people get older, their mental capacity may diminish. At some point, it may get to the point where they are legally incapacitated. In this situation, a loved one will typically have to petition the court to declare you incapacitated.

The court will look at a number of factors when deciding whether someone is incapacitated or not. In each case, the court should assume that you are able to make decisions on your own unless there is convincing evidence to show that you cannot. This will typically come from family members testifying, medical professionals giving their opinion, and a judge asking you questions. If the judge is convinced that you are incapacitated, they will make that declaration.

What Happens When You Are Incapacitated

When the courts declare that someone is incapacitated, they will also have to name someone as your guardian. If you have a good estate plan in place, the person who you want to make decisions on your behalf will be identified so the courts simply name them as guardian. In most situations, the estate planning document used in this type of situation is going to be a power of attorney. The power of attorney grants another party the right to make decisions on your behalf while unable to do it on your own. There are two main types of power of attorney:

  • Healthcare Power of Attorney – This is the person who will make medical decisions on your behalf while you are incapacitated.
  • Legal Power of Attorney – This is the person who will make legal decisions on your behalf such as managing investments, paying bills, etc.

One person can serve as both the healthcare and legal power of attorney. This is often simply called a general power of attorney. While this type of legal document has a variety of names and options, they all refer to the same document, but just depend on the function that is intended. A power of attorney is an essential document that everyone should have. Call us today to get yours done!

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