Estate planning is about anticipating the things that will happen, as well as planning for events that might happen, such as incapacity. But what is incapacity? How do you plan for it, and who needs to worry about?
In general, every capable adult should think about creating an incapacity plan that will apply should you one day lose your ability to make your own choices. In practice, most people who become incapacitated are elderly, though it can happen at any age.
But whether you are near or past retirement age, facing a medical diagnosis for a condition such as Alzheimer’s disease, or are a young adult just starting out in life, creating an incapacity plan is a vital step. Here’s what you need to know about incapacity.
Legal Incapacity
The ability to think for ourselves, make our own decisions, and decide what we want to do from moment to moment is something most of us take for granted. Yet the idea of mental capacity is also something that is vital to our sense of individuality and freedom. A mentally capable person is someone who has the cognitive skills necessary to make knowing decisions.
All states have their own definition of what it means to be a mentally incapacitated person, even though these laws are typically very similar. They essentially say that any person who is substantially unable to provide for his or her own shelter, food, clothing, physical health, or financial affairs because of a mental or physical condition is incapacitated.
So, in order to determine if you are incapacitated, a court would both have to determine that you have a mental or physical condition and that, as a result of that condition, you can’t adequately look after yourself or your needs.
Incapacity Planning
So, let’s say that you one day suffer from a sudden illness that leaves you incapacitated. What happens then? First, there is the very practical question of deciding what is best for you. Who should do this? What can they decide? Do they have to follow any directions you might have left behind?
Unless you have created an incapacity plan, you leave all of these questions up to a New York court to determine. Because incapacitated people are not able to fend for themselves, a New York court will have to step in and give someone else the ability to make choices on the incapacitated person’s behalf.
If you create an incapacity plan you can decide who this person is, and you can ensure that they do not have to go through an expensive, lengthy and emotionally stressful court proceeding. Not only that, but you can leave very specific instructions about the kind of care you may or may not wish to receive, as well as other decisions you believe are important.
