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. While certain states use the term “incapacity,” others refer to this concept as incompetence.
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.
Elder law involves preparing for and addressing incapacity associated with injury, illness, disability, or aging. It is essential to understand the concept of incapacity applies to power of attorneys, wills and estate planning, and guardianship of an adult.
Suppose you become incapacitated, and you have not planned for who will be able to step into your shoes to make decisions for you. In that case, the court may appoint a guardian for those who become incapacitated without a power of attorney. Incapacity is a central concept in the guardianship of an adult. Guardianship of an adult is a court-supervised arrangement where one person assumes responsibility for an adult who is incapacitated.
The court must first determine that a person is incapacitated before permitting someone to become the legal guardian of an adult. In making this determination, the court relies on evidence from the individual’s physician.
Making a will or any estate planning document that needs your signature, such as a trust or transfer on death deed, requires you to have capacity. You must understand what you are signing.
A will is only valid if you had the required mental capacity when you signed it. The court can invalidate your will if it finds that you were incapacitated when you signed it.
For people with cognitive difficulties impacting capacity, it is possible for capacity to fluctuate. A person with dementia may cycle through periods of lucidity and incapacity.
As you age, it is a good idea to meet with an attorney 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 us earlier enough, 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.