What Does Incapacitated Mean in Elder Law & Estate Planning? (Part 2)

In the last post, I shared about how incapacity is defined and what may cause it. Here are ways incapacity relates to specific estate planning documents:

Power of Attorney

A power of attorney is a legal document that is used to appoint someone you trust to make decisions for you.

  • With a health care power of attorney, you can select an agent who will make health care decisions for you. You can also leave instructions for your agent regarding the type of care you wish to receive, including end-of-life care.
  • A financial power of attorney can be used to give someone the authority to handle your finances, including managing your accounts and paying your bills.

In order to create a valid power of attorney, you need to have mental capacity to understand the contents of the power of attorney when you create this document. If you later become incapacitated, a power of attorney makes it possible for you to preserve your autonomy since you have made the choice about who will make decisions for you according to your wishes.

Depending on how your power of attorney is structured, you could choose for it to take effect only after you become incapacitated. You could also choose for authority to be given to a trusted individual as soon as you create the power of attorney.

For individuals who become incapacitated without a power of attorney, the court may appoint a guardian.

Guardianship of an Adult

Incapacity is a key concept when it comes to the guardianship of an adult. Guardianship of an adult is a court-supervised arrangement where someone assumes responsibility for an adult who is incapacitated.

Before permitting someone to become the legal guardian of an adult, the court needs to first determine that this adult is incapacitated.

Individuals with significant autism, severe intellectual disability, or Down syndrome are more likely to have guardians, according to the National Core Indicators Data Brief.

Wills and Estate Planning

When it comes to creating a will or any estate planning document that requires your signature, including a trust or transfer on death deed, you must have capacity and understand what you are signing. If the court finds that you were incapacitated when you signed it, the court can invalidate your will.

It is possible for capacity to fluctuate for individuals with cognitive difficulties that affect capacity. Someone with dementia, for example, may cycle through periods of lucidity and incapacity.

Consult With Your Estate Planner

It’s a good idea to meet with your estate planning attorney early as you start getting older to begin developing a will and estate plan. Dementia, which can affect capacity, impacts about 10 percent of adults 65 and older, according to Columbia University.

By working with your estate planning attorney sooner rather than later, you can ensure that you have a valid will in place and prevent others from challenging the validity of your will.

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.