Often times, individuals lose their independence as they grow older. For instance, conditions that arise with age such as Alzheimer’s, Parkinson’s and dementia can impair an individual’s ability to make financial and medical decisions. Sometime seniors vacillate between moments of lucidity and confusion, making it difficult to determine whether they are still able to care for themselves properly. Should a question arise as to a loved one’s ability to remain independent, it is critically important to establish protective safeguards.
What is legal incapacity?
Before taking any action on behalf of another, one must first establish legal incapacity. In short, incapacity describes an individual’s inability to provide care for oneself. Incapacity can be declared by a court, or by a doctor or doctors, depending upon whether the individual in question has done any advance planning. Because incapacity is ultimately a legal question, it is wise to seek legal counsel at the outset of making such a determination. With the assistance of an attorney, individuals are better equipped to ascertain whether their loved one is legally incapacitated.
What tools are available to act on behalf of somebody who is incapacitated?
There are a number of legal tools available to assist those who are incapacitated. Regardless of which legal device is used, however, it is of utmost importance to act in accordance with the incapacitated person’s wishes. As such, with an attorney’s assistance, one should first look to see if the incapacitated individual did any advance planning indicating his or her wishes. Documents which may provide insight include:
• Powers of attorney: Legal documents which permit an agent to make legally binding decisions on behalf of another.
• Advance directives: Planning tools which provide direction to medical personnel prior to there actually being a need. A living will, for instance, is an advance directive which outlines an individual’s medical wishes for the end of his or her life. While living wills are generally used as a way of telling doctors and loved ones that life-sustaining treatment is not desired, they can be used to express a preference for such treatment as well.
• Living trusts: A legally enforceable document which provides instruction on how to manage assets itemized in the trust.
If there are no guiding documents to be found, an attorney can assist in having somebody appointed to act in behalf of the incapacitated individual. Depending on what the individual’s needs are, the court may see fit to appoint either a:
• Conservator: An individual appointed by the court to make financial decisions on behalf of another.
• Guardian: An individual appointed by the court to make medical decisions on behalf of another.
When acting on behalf of another person, even a loved one, many complex legal and moral issues arise. It is extremely important to protect not only the incapacitated individual, but also the person handling his or her affairs. Qualified legal counsel can be very helpful throughout the entire process, from determining incapacity to establishing appropriate financial and medical protections.
