A comprehensive estate plan should cover more than simply the division of assets upon death. One of the most common editions to an estate plan is an incapacity plan. Unfortunately, most people relate the concept of incapacity to old age and diseases such as Alzheimer’s. While it is true that you are more likely to become incapacitated as you age, the reality is that a tragic accident or terminal illness could lead to your incapacity at any time. It is for this reason that incapacity planning is a highly recommended addition to any estate plan. It helps, of course, to have a clear understanding of what is meant by the term “incapacity”. Not only will it help to understand the definition of incapacity as it relates to your own estate plan but it may also come in handy if you suddenly find yourself dealing with the incapacity of an older family member or loved one.
Under Missouri law a person is considered to be incapacitated when the individual is:
“… unable due to any physical or mental condition to receive and evaluate information or to communicate decisions to such an extent that he is unable to provide himself with food, clothing, shelter, safety, or other care to such an extent that physical injury, illness or disease is likely to occur.”
The next question you may have is who determines whether I (or a loved one) meet the definition of incapacitated? That answer is not as simple as defining incapacitated is. Who has the authority to determine that you are incapacitated will depend, to some extent, on the reason for which a determination of incapacity is needed. For example, if the issue relates to healthcare and whether or not an advanced directive will take effect then your treating physician will have considerable input on the issue of your incapacity.
If, on the other hand, the issue relates to a guardianship proceeding that a court will ultimately make the determination after ordering an evaluation, in most cases, by a physician and/or mental health professional.
Finally, there are some situations where you may have input into determining your own incapacity. If you create a living trust, for example, and appoint yourself as the trustee and your spouse as the successor trustee you will need to create terms that dictate when the successor trustee will take over. Death and incapacity are two common situations when a successor trustee will take over. Because you create the trust, as well as the terms within the trust, you may be able to include your own definition of incapacity for purposes of your successor trustee ascending to the position of trustee.
All of these issues are relevant to the creation of an incapacity plan. Be sure to consult with your estate planning attorney if you have additional questions or concerns.