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Planning for Incapacity

A time may come when your loved one can no longer make financial or medical decisions because of an illness or disability. It’s important that she have certain legal documents in place to ensure that her wishes are followed even when she can’t speak for herself.

Encourage your loved one to think about whom she would trust to make medical decisions for her, to pay her bills and to ensure that her everyday needs are met? She’ll need to put her preferences in writing. Otherwise, if she becomes incapacitated, a court may need to appoint a guardian to make decisions for her. The court-appointed guardian might not be her first choice to oversee her care, and he or she might not make decisions based on your loved one’s values and wishes.

By preparing the appropriate legal documents now, your loved one can make her wishes known and retain the most control over her future.

Preparing Key Legal Documents
Using a durable power of attorney and/or a trust, your loved one can designate someone to make financial decisions on her behalf. She should use a health care power of attorney to name someone to make medical decisions for her.

She can give an individual the authority to make a wide range of decisions, or she can limit that person’s authority to performing only a single act. She also can provide specific directions regarding the decisions she wants made.

Your loved should work with an attorney to ensure that all legal documents meet state requirements.

Defining and Coping With Incapacity
How do you know if your loved one is becoming incapacitated? Keep in mind that there’s no cut-and-dry definition for incapacity. It’s one of those words that people use all the time, but it has many layers of meaning.

Your loved one might have the capacity to do some things but not others. For instance, she may have lost the ability to drive, but she may be capable of writing a will or deciding where to live. Further complicating the issue is the reality that a person’s capacity to do any one thing can fluctuate.

Various assessments can be done to evaluate capacity. Most of these assessments are conducted informally. A driving examiner may determine that your father no longer has the capacity to drive. A lawyer may determine that your aunt doesn’t have sufficient capacity to sign a contract but does have capacity to write a will. A doctor might determine that your mother doesn’t have the capacity to make a medical decision; however, after some treatment, her capacity to make the next medical decision may return.

The only way to determine if someone is “legally” incapacitated is through a guardianship proceeding. In such proceedings, the court determines if an individual has lost some or all of the ability to make decisions about personal or financial matters.

If your loved one hasn’t planned for incapacity and you feel that she can no longer care for herself or her property, you’ll need to file a petition with the court explaining why she needs a guardian and who is qualified to be appointed. Your loved one will need to be examined by experts who can determine the extent of any incapacity, and both of you probably will have to appear in court. Before considering filing for guardianship, consult with an attorney about the requirements in your loved one’s state.

Ultimately, the court will decide who the guardian will be. The court also will decide how much authority to give that person. A guardian might have the authority to make decisions about finances and real estate only. Or the guardian might be responsible for making all decisions for your loved one, including those having to do with health care, living arrangements and personal needs.

The guardianship process can be emotionally and financially draining. It also can take away a person’s rights to make decisions about her own life. That’s why it’s best if your loved can plan for incapacity while she’s still able to make decisions for herself.

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