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What is Incapacity?

Many pieces of an estate plan, including your powers of attorney, medical directives, as well as your revocable living trust, will address the question of what will happen should you become incapacitated. But what is incapacity? As someone who creates an estate plan you need to know what incapacity is. Though the definition differs between states, here are the broad strokes.

What is it?

Incapacity can be broadly defined to mean you are unable to understand what you’re doing, unable to recall what property you own, or don’t remember whom your heirs are. But this definition of incapacity is very broad. States also look at incapacity very specifically. For example, your doctors or representatives may have to determine whether you are able to exhibit the use of short-term or long-term memory, whether you are able to stay awake during important meetings, and whether you are able to clearly identify where you are, what time it is, what year it is, etc.

Who gets to decide?

Once you know what incapacity is, you also have to determine who gets to make the decision that you are no longer capable. You have several choices in this respect, ranging from assigning the power to determine to a loved one, a loved one and a physician, to physicians, or even a court. If you want to remain in command of your own interests for as long as possible, you’ll probably want to select a method that is fairly conservative, such as requiring two physicians to determine incapacity.

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