What Does Incapacitated Mean in Elder Law & Estate Planning?
Nov. 6, 2023
When working with an attorney to prepare for your future and address the challenges associated with aging, you will likely come across the term "incapacitated."
Someone who is incapacitated cannot make personal decisions or understand legal documents. An incapacitated person requires a surrogate decision-maker, such as an agent under a health care power of attorney or a guardian.
When a person has the mental state to execute a valid legal document, such as a will or trust, this is known as having capacity. Capacity is the opposite of incapacity. If a court finds that a person signed a will while incapacitated, the court can invalidate the will.
(Note that while certain states use the term "incapacity," others refer to this same concept as "incompetence.")
Causes of Incapacity
You or your loved one could become incapacitated for a variety of reasons, including illnesses, injuries, and disabilities. A person with a severe developmental disability may be legally incapacitated for their entire adult life.
Someone who experiences a disability later in life may become incapacitated after the onset of an illness or injury. For example, an older adult who develops dementia may become incapacitated once the dementia progresses, such that the individual cannot understand a legal document or make personal decisions
As you age, it is a good idea to meet with your estate planner early and begin the process of developing a will and estate plan. Dementia, a disease that can affect capacity, impacts approximately 10 percent of adults 65 and older, according to Columbia University.
By working with your estate planner, you can help prevent others from challenging the validity of your will after you pass and ensure that you have a valid will in place.
Our Office Can Help
Click here to Schedule a FREE Virtual Estate Planning Session. We will guide you through the entire process and help you understand what needs to be done to ensure your loved ones are taken care of.
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