Creating a comprehensive estate plan often includes planning not just for the eventuality of death, but also for the possibility of incapacity. Knowing who would make decisions for you and who would control your assets if you were to become incapacitated provides invaluable peace of mind. Before you can plan for incapacity, however, it helps to know how that word is defined and who makes a determination that someone is incapacitated. To help you better prepare for the possibility of your own incapacity, a Rochester incapacity planning attorney at the Law Office of Michael Robinson, P.C. explains who decides if someone is incapacitated and how that determination is made.

Do I Really Need to Worry about Incapacity at My Age?

Because the term “incapacitated” is so often associated with age related conditions such as Alzheimer’s disease, people just as frequently associate the possibility of becoming incapacitated with old age. The reality, however, is that you don’t have to be a senior citizen to suffer a period of incapacity. In fact, incapacity can strike anyone at any age as a result of a debilitating illness, a catastrophic accident, or even a serious workplace injury. To put the possibility of becoming incapacitated prior to reaching your retirement years in perspective, consider the following facts and figures:

A little over 1 in 4 of today’s 20 year-olds will become disabled before they retire
In December of 2012, there were over 2.5 million disabled workers in their 20s, 30s, and 40s receiving SSDI benefits.
A typical 35 year-old has a 24 percent chance of becoming disabled for 3 months or longer during his/her working career.
Moreover, that same worker has a 38 percent chance that the disability would last 5 years or longer, with the average disability for someone like him/her lasting 82 months
Stroke is a leading cause of long-term disability and 34 percent of people hospitalized in 2009 for stroke were younger than 65 years of age

How Does the Law Define Incapacity in New York?

The concept of “incapacity” isn’t limited to one specific scenario. Instead, it can come up under several different scenarios. As such, the law sometimes uses different definitions or criteria to define the concept of incapacity, depending on how and when it is used. By the same token, there is often more than one person with the authority to declare you incapacitated. For example, if someone has petitioned to become your legal guardian in New York, the New York Mental Hygiene Law (MHL) governs the determination of incapacity. According to § 81.02(b) of the MHL:

The determination of incapacity shall be based on clear and convincing evidence and shall consist of a determination that a person is likely to suffer harm because:

the person is unable to provide for personal needs and/or property management; and
the person cannot adequately understand and appreciate the nature and consequences of such inability.

Moreover, when a judge is required to make a determination of incapacity in a guardianship proceeding in New York, § 81.02(c) of the MHL provides guidance in making that decision by stating:

In reaching its determination, the court shall give primary consideration to the functional level and functional limitations of the person. Such consideration shall include an assessment of that person’s:

management of the activities of daily living, as defined in subdivision (h) of section 81.03 of this article;
understanding and appreciation of the nature and consequences of any inability to manage the activities of daily living;
preferences, wishes, and values with regard to managing the activities of daily living; and
the nature and extent of the person’s property and financial affairs and his or her ability to manage them.

A determination of incapacity may also be necessary if you are unable to make healthcare decisions at some point and you have an advance directive in place. The New York Health Care Proxy allows you to appoint an Agent to make health care decisions for you if you are unable to make them yourself. For your Agent’s authority to go into effect, two physicians must determine that you are unable to make decisions for yourself.

Contact a Rochester Incapacity Planning Attorney

For more information, please join us for an upcoming FREE seminar. If you have additional questions about planning for the possibility of incapacity or about how best to handle an incapacitated loved one, contact a Rochester incapacity planning attorney at the Law Office of Michael Robinson, P.C. by calling 585-374-5210 to schedule an appointment.