People in Dallas, Texas who want to make an estate plan will not only have to create devices that deal with what will happen to your property after you die, but also devices that will apply while you are still alive but are unable to make your own choices. When a person is no longer capable of making choices, the law says such a person is incapacitated. An incapacity plan, therefore, is a collection of documents that you can make in preparation for this possibility.
But what is incapacity, and how will you know you, or someone else, is incapacitated?
The answer to this question isn’t always clear, and will differ from case to case. However, there are some basic concepts about incapacitation that you can learn about so you have a better idea about both what incapacity is, and why it’s important to make an incapacity plan as soon as possible.
According to the Texas Probate Code, section 601(14), an incapacitated person is any of the following:
- A minor (someone under the age of 18)
- An adult who is unable to provide for his or her own food, clothing, physical health, financial affairs, or sheltering needs because of a physical or mental condition
- A person who must have a guardian appointed in order to receive funds from a state or federal government source
In most incapacity planning situations, people aren’t worried about being a minor or having a guardian appointed in order to receive state funds. Most incapacity plans are designed to address possibility number two: the possibility that you might one day be unable to care for yourself because of a medical or physical problem.
While the legal definition found in Texas law seems clear, it isn’t exactly precise. This is why incapacity planning is so necessary. A court will have to decide if and when an adult is incapacitated. In most situations it will do so, for example, after holding a hearing and soliciting evidence or testimony from expert witnesses.
For example, if an elderly adult is diagnosed with Alzheimer’s disease, a court will have to determine if that person is legally incapacitated. In such a situation the person’s physicians might testify in court that the elderly person can no longer provide for his or her own needs. After that, the court will decide whether the person is incapacitated or not.
What’s important to take away from this idea of incapacity is that once the court has determined that you are no longer capable, someone else must make your decisions for you. By creating an incapacity plan before then, you effectively give yourself the ability to choose who will make these choices for you, instead of leaving that decision to a court.