Incapacity is a topic near and dear to my heart. When dad was diagnosed with Alzheimer’s, the term incapacity took on new meaning for me. I realized it wasn’t something I could always “see” physically. And now I understood that incapacity had both medical and legal meaning.
Incapacity medically refers to a person’s inability to act or make decisions due to a mental disorder or physical disability, while legally it means being substantially unable to provide basic needs or manage one’s affairs.
August is Make a Will Month. As August comes to a close, let me firstly encourage you to legally protect yourself in case of incapacity and death. Secondly, allow me to inform you that a will addresses how your assets are distributed and other instructions after your death.
A will is reviewed after death. Other legal documents are used to document what your wishes are in case of incapacity.
Temporary and Permanent Incapacity
It’s important to note both temporary and permanent incapacity for your planning purposes. Let’s take my dad as an example of permanent incapacity. A temporary incapacity would apply If he had a sudden illness or accident and wasn’t able to communicate or make financial decisions.
Make sure to talk with an estate planning attorney to plan in case you have temporary or permanent incapacity as well as what to do when you’re no longer here. DIY options often miss the precise language required in your state of residence to ensure things go smoothly when you need it.
Photo by Ann H: https://www.pexels.com/photo/question-mark-on-pavement-2646533/
How is Incapacity Diagnosed
Incapacity is typically diagnosed through medical evaluations by licensed professionals, with specific requirements varying by state. Jurisdictional differences in the US are a reminder to check before needed, please! Here are four US states to show you the differences.
How incapacitated is defined and determined can vary significantly depending on where you live. This table highlights key differences between four representative states.
| Legal Aspect | California | Texas | New York | Florida |
|---|---|---|---|---|
| Governing Term | Conservatorship | Guardianship | Guardianship (Article 81) | Guardianship |
| Definition Focus | Inability to provide for personal needs (food, clothing, shelter) OR manage financial resources. Focus is on functional limitations. California Probate Code | Lacks sufficient capacity to manage physical health, provide for self, or manage financial affairs. Distinguishes between a Guardian of the Person and Guardian of the Estate. Texas Estates Code | A determination that a person is likely to suffer harm because they are unable to provide for personal needs and/or property management and cannot adequately understand the consequences of this inability. New York Mental Hygiene Law | Lacks the capacity to manage at least some property or meet some essential health and safety requirements. The law explicitly favors limited guardianships. Florida Statutes |
| Who Can Petition? | The proposed conservatee, their spouse/partner, a relative, friend, or a public agency. | Any person can file an application for guardianship. The applicant does not need to have a relationship with the proposed ward. | The alleged incapacitated person, a family member, a healthcare provider, a social services official, or basically anyone with a legitimate concern. | Any adult resident of Florida, or a non-resident who is a relative, can file the petition. |
| Key Procedural Step | A Court Investigator is appointed to interview the proposed conservatee and provide an independent report to the court. | An Attorney Ad Litem is appointed to represent the best interests of the proposed ward. A Court Investigator also reports to the court. | A Court Evaluator is appointed to conduct an investigation and report to the court on the person’s condition and whether a guardian is necessary. | A 3-member Examining Committee (usually two doctors and another professional) is appointed to assess the person and submit reports to the court. |
What this means for you: The process and even the outcome of an incapacity case can change dramatically just by crossing a state line. It is absolutely essential to consult with an Elder Law attorney in the specific state where you or the person you care about resides.
Photo by Ann H: https://www.pexels.com/photo/plan-sign-on-colorful-background-18833781/
Plan in Advance
Thinking about and planning for all scenarios, including incapacity is so important. It’s the while I’m living planning that trips so many up. Maintaining life as you’ve known it is the driving force of resistance and motivation.
Resistance to the possibility of change that may be negative. Motivation to care for our responsibilities and those we love to avoid unthinkable disruption.
I know this is difficult. I also know that it is very difficult if this planning is not done. I encourage you to think about incapacity planning sooner, rather than later. Here is one thing you can check. Ask your bank what they require in case of incapacity.
Over the years, working with clients, I’ve learned how differently each bank handles this. When you have two banks, check with both. It’s important for you to verify their process, forms, and requirements.
After years of hearing how people are caught off guard by the level of detail required by 3rd parties during and after a health event or natural disaster, now is a good time to work together to collate and organize your life’s details.
I’d like to invite you to test The Ready Room concept with me at no cost to you. This is a time for you to dedicate time to plan and organize the admin side of life (document and work on tasks), and a place to ask questions. If you’re ready, sign up to meet on Zoom for one hour on Wednesday, September 16th at 9 am Pacific Time. If you’re interested, sign up HERE. If you have personal questions, we’ll pop into a breakout room for your privacy.
If you have questions, please feel free to Email me. If you’d like to learn more about my work, check out my website @ The Living Planner. Let me know if there are topics of interest to you for my weekly blog. It’s always good to hear from you.
I’ve written my book for people who would like to consider planning for now and after a loss. The 2026 edition of Living Planner What to Prepare Now While You Are Living © can be purchased HERE.
Quote of the week: “May you live every day of your life.” Jonathan Swift
Fall preparation time is here! Lynn
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