One Of The Greatest Gifts To Your Family Is The Plan For Incapacity

An older woman takes medication from a nurse in her home as part of her incapacity plan.

One of The Greatest Gifts To Your Family Is The Plan For Incapacity

A well-crafted estate plan accounts for not only the expected but also the unexpected, including the possibility of being incapacitated. While incapacity planning is an elevated concern for seniors, anyone can experience an illness or injury at any stage of life. In these situations, having a plan in place to protect your well-being and assets is critical. At Loughlin Law, P.A., we help individuals and families across Florida prepare for the sensitive issue of incapacity. Consider contacting our team at (561) 677-8384 to learn how we can help put your mind at ease through careful, compassionate, and strategic estate planning.

What Does It Mean To Be Incapacitated?

Incapacity is a legal term used to reflect a person’s mental or physical inability to perform various functions. According to Section 744.102(12) of the Florida Statutes, an incapacitated person is one who has been legally determined to lack the ability to handle at least some of their property or meet at least some essential health and safety requirements.

If a person cannot obtain healthcare, food, shelter, or maintain personal hygiene without which they are at risk of serious and imminent physical injury, they are considered to lack the capacity to meet essential health and safety requirements. In other words, being incapacitated means that an individual is no longer able to care for their health and their affairs. Incapacitation can be episodic, temporary – lasting for a few days or weeks – or it could be permanent.

What Is the Difference Between Mental and Physical Incapacitation?

Mental incapacitation applies when an individual is unable to make decisions due to a cognitive issue. While this form of incapacity can arise due to a mental illness or disability, the most common cause of mental capacitation is dementia. Physical incapacitation, on the other hand, occurs when a person is unable to communicate their decisions due to physical limitations. This can happen due to physical deterioration or disability, but the most common reason for physical incapacitation is unexpected illness or injury such as head injury, spinal cord injury, or amputation.

What Are Some Examples of Incapacity?

An example of physical incapacitation may arise when an individual is involved in a devastating car accident on their way to work. They would be taken to the hospital immediately after the accident, where doctors find a traumatic brain injury from the accident, and the individual falls into a coma for three months. During this time, the individual would be incapacitated because they cannot manage their health or affairs on their own.

An example of mental incapacitation may be an individual diagnosed with Alzheimer’s disease three years ago. Since their diagnosis, the disease has progressed steadily, and their adult son now believes they are unable to function independently and handle everyday decisions and issues. The adult son goes to court and requests a finding of incapacitation from the court, which is granted, and now the adult son is responsible for his father’s affairs.

What Is an Incapacity Plan?

An incapacity plan refers to all of the precautionary measures put in place to prepare for temporary or permanent incapacity. This plan includes all of the legal tools that can be used to appoint trusted individuals to manage your affairs and make important healthcare decisions on your behalf. Having an incapacity plan in place is vital for individuals who want to establish detailed instructions for the management of their affairs and who wish to have their desires honored in the event of incapacitation.

What Documents May Be Included in an Incapacity Plan?

The structure of an incapacity plan will vary depending on the individual’s unique needs and goals. At Loughlin Law, P.A., we take the time to review your medical, financial, and legal needs to develop a plan that works for you and your loved ones. The following are some of the documents that you may choose to include in your plan:

  • Designation of Healthcare Surrogate: This form is used to appoint a person to make medical decisions for you during a period of incapacity. This individual will be able to talk to your doctors, manage your medical care, and make important decisions regarding your healthcare.
  • Durable Power of Attorney: When you execute a power of attorney, you grant someone the legal authority to control your assets if you are incapacitated. For instance, they can control your investments, pay your bills, maintain your real estate, and even establish trusts to care for your children.
  • Revocable Living Trust: This document provides legal protection for your assets by transferring them out of your name to a legal entity called a trust. You can name a person as the trustee to maintain control of the assets and follow your instructions for managing and disposing of them in the event of your incapacitation.
  • Advance Directives: Advance directives, such as a living will, can outline the your preferences regarding healthcare choices such as medications, life-preserving measures and organ donation.

How Is Incapacity Determined?

The legal definition of incapacitation is quite broad, as it is intended to encompass a wide range of circumstances. The broadness of the law gives courts the discretion to make decisions on a case-by-case basis, by assessing the unique circumstances of an individual’s situation.

How Do You Start the Process of Determining Incapacitation?

In all cases, a capacity determination will begin when a loved one or a professional guardian files a petition with the court. The court then appoints an attorney for the alleged incapacitated individual and a three-person committee made up of individuals with medical backgrounds and training. Each member of the committee will then evaluate the alleged incapacitated person to make a determination.

How Does the Committee Evaluate the Person to determine Incapacity?

Based on Section 744.331(3)(f) of the Florida Statutes, the evaluation may include a physical examination, a mental examination, and a functional assessment. Each committee member will then outline their findings in a report that is submitted to the court. After this, an adjudicatory hearing will be held where a determination will be made about the person’s capacity based on all of the reported evidence.

How Can Loughlin Law, P.A. Help With Incapacity Planning?

While planning for a future impairment is an urgent concern for elders, establishing a comprehensive plan is an important consideration for anyone. With the essential legal, financial, and medical documents in place, the courts will appoint individuals to make decisions on your behalf. With so much at stake, establishing your impairment plan is crucial. Individuals and families across Florida look to Loughlin Law, P.A. to help craft tailored incapacity plans that protect their health, their assets, and their wishes in the event of incapacitation. Their team of compassionate attorneys will make sure that your wishes are honored and your affairs are managed, regardless of what life throws your way. To discuss your situation with their team, consider scheduling your free consultation today at (561) 677-8384.

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