A well drafted estate plan should be able to accomplish a variety of goals as well as incorporating numerous objectives into the plan. Of course, deciding how your estate assets will be distributed upon your death remains the primary goal of any estate plan; however, your plan may also include additional components such as an incapacity plan. In order to understand why including an incapacity plan is such a good idea we need to first answer the question “what is incapacity?”
If you are like most people you have a working definition for the word “incapacity”. It is one of those concepts where we all know what it means to us; however, is crucial to understand what the legal definition of incapacity is as well as how the law handles various scenarios where an individual is incapacitated and has failed to legally provide for that possibility.
To begin with, Texas defines incapacity as follows:
“incapacitated person” as “an adult individual who, because of a physical or mental condition, is substantially unable to provide food, clothing or shelter for himself or herself, to care for the individual’s own physical health, or to manage the individual’s own financial affairs.” Texas Probate Code § 601(14)
People often associate incapacity with old age dementia related diseases such as Alzheimer’s. As you age it is important to consider the possibility that you will suffer from a dementia related disease and plan accordingly but incapacity is not limited to old age. In fact, a tragic accident or terminal illness could cause you to become incapacitated tomorrow. If you fail to plan for the possibility the legal system will have to “fill in the blanks” which will most often be accomplished in a way that you would not have chosen. Consider the following decisions that will have to be made without your input if you failed to create an incapacity plan prior to becoming incapacitated:
- Who will make healthcare decisions for you?
- Who will make end of life decisions for you?
- Who will control your assets and finances?
- Who will make day to day decisions for you such as where you will live?
- Who will become the guardian for your children?
- Who will run your business?
Each one of these questions relates to a very personal, and highly important, decision that will have to be made in the event of your incapacity. If you failed to incorporate an incapacity plan into your overall estate plan that a court has no roadmap to follow when making these decisions. The end result (which often comes after a bitter battle among family members) may be that people you would never have chosen to control your life are appointed by a court to do just that.
Stephen A. Mendel, Estate Planning Attorney
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