You’ll likely come across the term “incapacitated” while planning with an attorney for your future and addressing challenges that may come along with aging. In this post, I’ll write about how incapacity is defined as well as what can cause it, and next week I’ll write about what this concept means in relation to elder law and estate planning.
When someone is incapacitated, they are unable to make personal decisions or understand legal documents. A person who is incapacitated requires someone to make decisions on their behalf. Individuals such as an agent under a health care power of attorney or a guardian might be the ones to make decisions for a person who is incapacitated.
Having the mental state to be able to execute a valid legal document (like a will or trust) is referred to as having capacity. Capacity and incapacity are opposites of one another. A court can invalidate a will if it finds that an individual signed the will while incapacitated.
One thing worth noting – some states use the term “incapacity,” but other states use the word “incompetence” to refer to the same concept.
Causes of Incapacity
Incapacity can have a number of different causes, including illnesses, injuries, and disabilities. Someone with a severe developmental disability might be legally incapacitated for all of their adult life.
A person who is disabled later in life may become incapacitated following the onset of an illness or injury. One example of this might be an older adult who develops dementia becoming incapacitated once the dementia progresses to the extent that this person becomes unable to understand a legal document or to make personal decisions.
Incapacity in Elder Law
In elder law, incapacity associated with injury, illness, disability, or aging is prepared for and addressed. Next week, I’ll write about how the concept of incapacity applies to power of attorneys, wills and estate planning, and guardianship of an adult.
For help with your estate plan, contact us at Wilson and Wilson Estate Planning and Elder Law, LLC at 708 482 7090 for our main office in LaGrange, Illinois or at 847 656 8958 for our Northbrook, Illinois office.