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What if I don’t die but rather become incapacitated? What would happen to me and my family?

When does a person become incapacitated?

When you are no longer considered to be able to make decisions for yourself, that is one definition of incapacitation. You must be able to act intentionally now when you have an opportunity to plan for an event. As we will be discussing in today's blog post, there are a series of documents that you can create that will help you to be able to plan for the ups and downs of estate planning as it relates to incapacitation.

Unfortunately, it is not always straightforward to determine if a person is incapacitated. The specific circumstances of your case will play a huge role in determining whether you will be legally held to be incapacitated. Learning what incapacitation is as well as the ins and outs of drafting paperwork associated with an end-of-life scenario is what the attorneys with the Law Office of Bryan Fagan pride ourselves on every day.

The Texas Probate Code defines an incapacitated person as someone who is any one of the following:

  1. A minor (a person who is under age the age of 18)
  2. An adult who is unable to provide for his or her food, clothing, physical health, financial affairs, or sheltering needs because of a physical or mental condition
  3. A person who must have a guardian appointed to receive funds from a state or federal government source

Because you may one day be unable to care for yourself this is an extremely important topic not only for you but for your family. Since there can be a significant amount of gray area when it comes to the definitions of incapacitated, you need to become as familiar as possible with this subject so you can assess the level of risk that you may be taking on by not having any plans in place for an incapacitating event. This could mean a hearing will be held and a judge can decide whether you are disabled.

When it comes to much of estate planning, we either figure that we are going to be alive or dead. However, there is a chance that an injury, accident, or other situation could arise where you or I become incapacitated and unable to care for ourselves. The way that I am going to use the term incapacitated for today's blog post is an inability to make decisions for yourself or your family. Whether that is due to a mental impairment or a physical impairment that does not allow you to express yourself, this is a circumstance that many people don't consider when it comes to estate planning.

If you do not prepare for this sort of situation, then what you may encounter is the following. You are unable to speak, move or express yourself. So many matters in your life- your family, your finances, your wish for your estate after you pass away- now need to be acted upon by people other than you. The hard work that you put in to build up your estate, create a family and everything else will now be decided by another person. This can be a disheartening and deflating feeling to think about.

While you may not want to think about being put in that situation, there is a good thing about that empty feeling in the pit of your stomach- it means that you can do something about not being in that position and not leaving your family left “holding the bag” and wondering what to do next. If anything, you can use that feeling to motivate you to create a plan for what should happen if you become incapacitated and unable to make decisions for yourself.

Being incapacitated means that you cannot create contracts, estate documents, or other legal forms that can potentially distribute your property that may be able to go towards your care. If you are married, then your spouse can make decisions about what happens with their money. However, if there are assets that you own like a vehicle or real estate, you would be in a tough position had you not planned for something like this because your spouse would not otherwise be able to sell any property without your permission.

A power of attorney or living trust is two options that you can consider while you are still able to which can help those people who are closest to you if they need to go to court to obtain guardianship of you given your incapacitation. However, in many cases having a spouse or other person become your legal guardian is not the best plan of action. When a court appoints someone as your guardian that means that the guardian can potentially sell or otherwise make use of your assets or income. However, it also means seeking approval from the court for any decisions like this. Your guardian would not be able to do anything quickly. Having to go through the court means that the process slows down. The process is much more deliberate as a result.

If you create a power of attorney, then you can decide whether it will go into effect immediately or at a later date if you become incapacitated. For the power of attorney to go into effect the person who would gain power of attorney over your affairs would need to prove that you have become incapacitated.

Power of attorney documents can relate to financial or medical matters. You can have a power of attorney for medical matters and another for financial matters. Each power of attorney can name a different person to have power of attorney over you if you become incapacitated. You can set limits to each document so that the financial power of attorney, for example, can only make decisions that relate to a particular area of your finances. Note that a power of attorney can become invalid or void if a person is named as your guardian in a guardianship proceeding.

Having a power of attorney drafted and ready to go into effect when you become incapacitated will prevent other people in your life from being able to initiate a guardianship proceeding. If someone were to become a guardian of you that means that this person can make decisions on your behalf regarding your finances and medical decisions. This is a lot of power and is something that you would have no say in as far as who is appointed to fulfill this role.

While you cannot 100% dictate who will become your guardian you can complete what is known as a declaration of guardianship that will assist you and your family in having some peace of mind that a court would know your intentions when it comes to having a guardian named in your case if you become incapacitated. It is not foolproof and certainly, there can be problems in this regard. You can, for example, state who you do not want to be a guardian of yours. There may be someone in your life that you want the court to be aware of who may not have your best intentions in mind.

Living wills

Your living will specifically state what can and cannot be done if you become incapacitated. Many times, this will include something like a do not resuscitate instruction for medical situations. If you have a medical condition that has progressed to the point where you are not getting any healthier, you may decide simply to not have the doctors attempt any life-saving measures if you lose consciousness. This can be an incredibly difficult decision to come to and is not one that should be taken lightly without a great deal of contemplation and consideration about how to proceed.

A living will can be an especially helpful document to your family. Your spouse, children, or other relatives will be distraught by your passing, and having them make decisions about a range of topics after your passing can be especially difficult. A living will take that pressure off of them and allows your relatives to focus their attention on the grieving process instead.

Revocable living trust

A living trust is the closest you can get to being able to tell the world your intentions for how you want your life to operate even when you are incapacitated. This is the closest you can have to some degree of autonomy over your life even when you are not with it mentally or have other deficiencies that would have prevented you from talking or certainly making executive decisions for yourself. By creating a living trust, you can have the ability to manage your property and other assets responsibly.

You are the person who remains in control of the assets that are included in the trust, and you can also do away with the trust or change the terms of the trust at any time that you choose. This is useful if you find yourself in a situation where you were incapacitated but were able to recover and see your health improve to the point where you were no longer incapacitated. At that stage, you would be able to revoke the trust and it would no longer be in effect. You will name a trustee to oversee the trust when you become incapacitated. You can also choose to include all or some of your assets within that trust.

Plan for the unforeseen events of life

Nobody in their right mind wants to focus on their death or the paperwork that goes along with their passing. We are geared towards focusing on more pleasant aspects of our lives rather than on the drab and unpleasant parts like drafting estate planning documents.

What can an incapacitated person do about a durable power of attorney?

As we mentioned earlier in today's blog post, a durable power of attorney form is a very important end-of-life planning document that you can create now that you have an opportunity. It is easy to fall into the trap of believing that you will always be able to take the time to create a power of attorney is a mistake. We do not know whether our life will take a particular turn here or there. Fortunately, we are here to help you prepare for these difficult-to-anticipate events and set you and your family up for success were you to become incapacitated or otherwise unable to make decisions for yourself.

First off, on a general level, it is true that you can change your durable power of attorney by simply signing a new document. If you are working with an attorney, he or she can draft a new durable power of attorney and you can destroy the old version, and just like that, you will have a new power of attorney form to go off of. Just make sure to destroy the older version so that there are no questions regarding which one is current, and which is the older version. Having two versions laying around is a recipe for a dispute between family members that find everyone in court.

What happens if you become incapacitated? Could you still make a durable power of attorney or do away with an existing one that you have already signed? In a situation like this, we can look at the actual law itself that relates to a durable power of attorney. The statutes don't state a certain level of coherency or competency when it comes to who can sign a power of attorney. With that said, this is a situation that has gone through the courts before, and they have issued rulings that are relevant to this discussion.

Having what is known as “contractual capacity” seems to be the threshold level of competency when it comes to creating or revoking a durable power of attorney. All contractual capacity means is that you understand what you are doing as far as the consequences of your actions. If you have an understanding that you are filling out a durable power of attorney and that you are making plans for how to handle your affairs if you become unable to do so at some point in the future would seem to be all that is required of you at that moment.

What about revoking a previously completed durable power of attorney? The same competency to contract standard would be utilized in that case. If you want to be able to draft a new durable power of attorney but already have one, then you would just need to understand the significance of what you are doing in terms of overriding a prior power of attorney by drafting a new one. It may be simpler to revoke a medical power of attorney than a durable power of attorney, but you should speak with one of our attorneys to walk you through the law as far as your specific circumstances are concerned.

The long and the short of this is to say that if you become incapacitated your durable power of attorney will last until you are no longer incapacitated. This may require you to formally go before a court to have guardianship lifted. Or, if the guardianship was never initiated, the people around you would need to agree with you that you are no longer incapacitated. A power of attorney is a powerful document that can provide you with some degree of autonomy over your life even when you are incapacitated. However, the power of attorney must be completed before the point where you are unable to understand what you are signing up for.

Where to go from here?

After reading all of that, you may either be motivated to go out and take care of business while you still can, or you may be thinking that this situation is bleaker than you thought. There is no use in ignoring what could end up being a major problem for you and your family. By drafting a durable and/or medical power of attorney you remove a great deal of doubt as to what will happen in a situation where you are not able to understand what is going on around you, yet decisions still need to be made regarding your well-being and situation. By planning and putting into place the practices discussed in this blog post you can better prepare yourself and your family for the future. Take control of your circumstances while you still can be intentional about your life so can control as much of your circumstances as possible.

Questions about the material contained in today’s blog post? Contact the Law Office of Bryan Fagan

If you have any questions about the material contained in today’s blog post please do not hesitate to contact the Law Office of Bryan Fagan. Our licensed estate planning attorneys offer free-of-charge consultations six days a week in person, over the phone, and via video. These consultations are a great way for you to learn more about the world of Texas estate planning as well as what may happen were your family to become involved in a probate case.

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