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Planning for Incapacity

The loss of mental and physical capacity is a frightening concept. It is uncomfortable to think of ourselves in terms of diminished abilities and because of that discomfort, we often avoid planning for possible future incapacity.

What does “incapacity” mean?

The term “incapacity” is applied to an individual when, because of a physical or mental condition, is substantially unable to (1) provide food, clothing, and shelter for himself/herself, (2) care for the person’s own physical health, and/or (3) manage the person’s own financial affairs. We most often find incapacity in connection to instances of mental health issues, major accidents resulting in physical and mental injury, deteriorating physical conditions, and age-related illnesses, such as Dementia and Alzheimer’s.

Who determines if and/or when I am incapacitated?

Most commonly, your primary care physician will determine whether or not you are incapacitated. Prior to making any type of determination, your doctor will conduct a physical and/or mental examination. A physical examination is a routine exam in which the doctor can determine if you are physically capable of tending to your personal needs. A mental examination is often conducted by administering a Mini-Mental Exam, which asks the patient to answer simple questions, complete routine tasks of daily living and short term memory exercises. Depending on unique medical requirements, most specifically in relation to age-related memory diseases, a neurologist and CT/PET scans of the brain may be utilized in conjunction with the examination.

What happens if I am deemed incapacitated?

If you are found to be incapacitated and you have not completed any planning for possible incapacity, a guardianship would be established for you. The term “guardianship” refers to the legal relationship between a Ward and a Guardian. The Ward is the incapacitated individual. The Guardian is a Court-approved individual who is granted the duty and responsibility to provide and manage the Ward’s care and manage the Ward’s financial estate. The Guardian is also subject to ongoing Court-related requirements, such as providing annual reports on the Ward’s well-being and annual accountings of any funds spent for the benefit of the Ward. The management of the Ward’s care is referred to as a Guardianship of the Person. The management of the Ward’s financial estate is referred to as Guardianship of the Estate. Becoming a Guardian can be a lengthy, expensive and emotionally exhaustive process. However, by taking the time to plan for the possibility of future incapacity, you can easily circumvent the need for a guardianship in the event you are incapacitated.

How can I plan for possible future incapacity?

There are several documents that can be executed prior to the onset of incapacity that will smooth the road for you and your loved ones.

  • Durable Power of Attorney
    A Durable Power of Attorney designates an agent who can act on your behalf to manage your financial affairs. If you have executed a Durable Power of Attorney, a Guardianship of the Estate will not be needed in the event of your incapacity. Your agent will have the same rights and duties to manage your financial estate as a Guardian.
  • Medical Power of Attorney
    A Medical Power of Attorney designates an agent to make medical decisions on your behalf. If you have executed a Medical Power of Attorney, a Guardianship of the Person will not be needed in the event of your incapacity. Your agent will have the same rights and duties to manage and provide your personal care as a Guardian.
  • Declaration of Guardian
    There are a variety of circumstances when you may prefer a guardianship as opposed to a lesser restrictive alternative of the Powers of Attorney, as described above. If you prefer a guardianship, you can execute a Declaration of Guardian, which allows you to appoint the individual who you want to serve as the Guardian of your Person and Estate. Your nominated Guardian would still be subject to the annual reporting requirements, but a Declaration of Guardian will ease the establishment of your guardianship. You can also designate any person whom you would not want to be appointed as your Guardian.
  • Designation of Guardian for Children
    Incapacity is not a status reserved for senior citizens. Incapacity can strike at any time! Designating a Guardian for children in the event of incapacity is essential for parents of minor children. By designating a guardian for your children, you are appointing an individual(s) who will assume the care of your children if you are incapacitated. This will ensure that in the event of your incapacity, your children will not experience a lapse in care. The designation is not binding on a Court which has the jurisdiction to appoint a legal guardian, but it will streamline the process when you designate the person(s) you wish for the court to vest with that legal authority to make decisions and care for your children.

Contact the Springer Law Firm today to schedule a consultation with one of our experienced estate planning attorneys who can assist you in planning for the possibility of future incapacity.

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