People who create estate plans typically have a number of tools that address the possibility of becoming incapacitated. Whether you create a health care directive, financial durable power of attorney, living trust, or other devices that allow you to plan ahead against the possibility that you might not be able to one day make your own decisions, the idea of incapacity is an important one that you need to understand.
But what is incapacity? What does it mean to be incapacitated and what practical and legal effect does that have? While your estate planning attorney will be able to give you a much more thorough explanation in person, here are some important points you should keep in mind.
Under California law, an incapacitated person is someone who lacks the ability to make certain types of decisions or take certain types of actions. Specifically, incapacitated people lack certain mental functions and have significant impairments in their ability to understand the consequences of choices they make.
So what kinds of decisions is an incapacitated person unable to make? What kind of acts are such people unable to perform? California law offers several types of decisions or actions that can indicate a person is incapacitated.
For example, in order to be capable person of sound mind, you must be alert and attentive. If you are unable to concentrate, unable to orient yourself in time, or are unable to be conscious, these could indicate that you are incapacitated.
Further, people of sound mind have certain thought processes that those who are incapacitated often lack. For example, in incapacitated person might have severely disorganized thinking or suffer from delusions and hallucinations. Someone who lacks the ability to maintain a reasonable thought process might also have uncontrollable or intrusive thoughts that interfere with his or her ability to maintain the ability to make choices and understand decisions.
So what does this all mean? For practical purposes, understanding what incapacity means can allow you flexibility in determining when you want other people to step in and make decisions for you.
Let’s say, for example, that you are creating powers of attorney as part of your estate plan. Those powers give someone the ability to manage your finances and property should you become incapacitated. Under the terms of your power of attorney you can state that at least two physicians, or a court, must determine that you are incapacitated before the agent has power to act.
Of course, there are other options that might apply in your particular circumstances, so it’s best to consult with an experienced and qualified estate planning or elder law attorney before you make any final decisions.
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