How Does CA Define Incapacity when it comes to Estate, Wills, and Trusts?
There may come a time when we are no longer able to manage our own financial and legal decisions due to an illness, age-related disease, or disability. Under probate law, this is referred to as incapacity. Proper planning allows us to choose how and who will step in for us if we are no longer able to do these things for ourselves.
What is Incapacity?
In California, incapacity is regulated by California Probate Code § 810-13 and defined as “a judicial determination that a person is totally without understanding, or is of unsound mind, or suffers from one or more mental deficits so substantial that, under the circumstances, the person should be deemed to lack the legal capacity to perform a specific act….”
One may be considered incapacitated
If they are unable to understand or communicate with others
If they no longer recognize people or things that were once familiar to them
If they are unable to make logical decisions
If they are experiencing delusional thoughts or having hallucinations
If they are unable to control their moods and are acting inappropriately in the context of the situation
If they are unable to understand the consequences of their actions
Although incapacity may be obvious in some situations, in others, it is far more difficult to determine. While there are diseases that may leave an individual unable to make important decisions for themselves, such as dementia or Alzheimer’s disease, a medical diagnosis will not make someone automatically incapacitated. Determining incapacity is a careful legal process done with the cooperation of medical professionals and the court.
How is Incapacity Determined?
While the court will make a final determination of incapacity, this is never done without expert medical opinions. Usually, it begins with an initial diagnosis by the individual’s doctor. However, before any legal declaration of incapacity, a court will require medical records to confirm the level of impairment. The court may also designate an independent team of medical experts to conduct tests and evaluations and submit an opinion about an individual’s capacity. The individual or family members also have the ability to contest these findings.
Incapacity can be permanent or temporary if a condition improves. Once an individual shows that they are capable of taking personal responsibility again, the court may reverse the order, and personal decision-making capabilities may be reinstated.
Why Is Planning for Incapacity Important?
While no one likes to think about a time when they may not be able to make decisions for themselves, incapacity can happen without warning. If it is not planned for, incapacity may result in a court-supervised conservatorship naming another to manage your medical, personal, and financial affairs.
Proactively planning for incapacity can ensure that you name the individual(s) who you feel comfortable making decisions for your care should you become incapacitated. This also saves family members the stress and expense of trying to care for you and take over the financial, medical, and personal responsibilities of your care. There are a few estate planning options that enable loved ones to step in to manage these affairs and simplify their responsibilities, including
A Power of Attorney — Powers of attorney give rights to another to step in on an individual’s behalf, should they become incapacitated and not be able to make decisions for themselves. A healthcare power of attorney enables the designated individual to make healthcare decisions, whereas a financial power of attorney enables them to make financial and legal decisions.
Advanced Health Care Directive — An AHCD sets out important directives concerning your wishes about end-of-life determination, organ transplants, and other critical health care decisions that allow healthcare professionals and family members to proceed as you would wish.
Trust — A trust holds assets that can be managed by a successor trustee, named by you, according to the terms of the trust should you be unable to do so because of incapacity.
Proactively planning for potential incapacity, while not always a pleasant undertaking, ensures peace of mind for you and family members that your wishes are being considered should you become incapacitated.
An experienced estate attorney in Santa Ana, CA can answer any questions and concerns you may have about incapacity and how you can control your assets should it happen to you. At the Law Office of Roshni T. Desai, we are here to answer your questions and offer suggestions as they apply to your unique situation. Contact us online or call us at 714.694.1200 to schedule a no-cost consultation.