June 30, 2021

A person’s inability to manage their own legal, health care, financial and property decisions can lead to the authorization of someone else to serve in a representative capacity. When it comes to a trust, this individual might be known as your successor trustee. Agents under your power of attorney document for finances, legal affairs, advanced health care directives and property are eligible to make decisions on behalf of the incapacitated person.

Estate planning allows you to create the documents that determine when you are considered incapacitated as well as who will decide that you have met this definition. In many cases estate planning documents will define incapacity based on a person’s health condition or legal disability. Inability to care for their own physical health needs, shelter, clothing or food or inability to substantially manage their own financial resources are two of the most common factors to determine whether or not someone has met the term of incapacity.

In some situations certificates of incapacity issued by physicians can also be used to identify that a person has met the incapacity determination. These certificates must say that the incapacity standard in the estate planning document has been effectively satisfied in order for the statements to be legally effective. You do not want a grey area around the concept of incapacity, particularly when it empowers another person to make decisions on your behalf. For more concerns you have about the estate planning process schedule a consultation with an estate planning lawyer.