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Torrance Estate Planning & Probate > Blog > Wills > Planning For And Defining Incapacity In Your Estate Plan Documents

Planning For And Defining Incapacity In Your Estate Plan Documents


When forming an estate plan and creating estate documents, incapacity plays a big role. You may want to dictate what happens to your property should you become physically or mentally incapacitated. You may want to leave property to beneficiaries, but do something specific with that property in the event your beneficiaries become incapacitated.

Whatever the situation, it is important to know some of the challenges that you may face, when crafting an estate plan that deals with or addresses incapacity.

Defining Incapacity – It’s Up to You

The first issue is the obvious one—what is incapacity? As the creator of your own estate plan, you can craft your own definition of incapacity. What you don’t want to do, is leave this definition out—something that many people do, when addressing incapacity in wills or trusts.

You can specifically define what you consider incapacity to be. You can also defer, allowing doctors or a specific doctor of your choosing, to make that determination. You can have a team of doctors and specific family members make the determination as a committee. You can have an independent doctor, with no ties to you or your family, make a neutral decision.

You may not need anybody to make a decision—for example, if you have an incapacitated child, who will forever be incapacitated, that can be determined immediately when the will or trust are created, without the need for any further decision-making.

There is no “wrong” definition of incapacity, for the purposes of your own estate plan. You do want to make sure that the definition is consistent among your estate plan documents. But be careful; having incapacity means one thing in a will and something else in a trust, can create problems.

Managing Affairs After Incapacity

Note that these are people or methods that are determining whether you or someone else may be incapacitated in the first place. Once incapacitation is determined the question becomes who will manage affairs, property, or make decisions for the incapacitated person. These issues can be addressed through an advanced health care directive or power of attorney.

An advanced health care directive along with a durable power of attorney can allow whomever you designate to do whatever is needed, or it can be more limited, for example, allowing someone to operate your business, pay your bills, or make medical decisions.

Removing Incapacity

Just like you have definitions and procedures to determine when incapacity exists, you also may want policies and procedures to determine when incapacity is removed so there is an avenue for whomever it is, to get out of incapacity.

You also may want to have alternative dispute resolution, so that if family members or beneficiaries may be arguing over whether you (or anybody else in your estate plan) is incapacitated, or no longer incapacitated, there is an avenue to resolve the dispute before costly and time consuming court action.

Call the Torrance will and estate attorneys at Samuel Ford Law today for help drafting an estate plan that fits your needs.



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