Loune-Djenia Askew, Esq.
Aug 5, 2024
Determining whether a person is incapacitated is a critical aspect of estate planning and legal guardianship. Here's a simplified overview of how incapacity is determined and what it means for you and your loved ones.
Determining whether a person is incapacitated is a critical aspect of estate planning and legal guardianship. Here's a simplified overview of how incapacity is determined and what it means for you and your loved ones.
Medical Evaluation
A key step in determining incapacity is a thorough medical evaluation. This typically involves:
Physical Examination: A doctor assesses the person’s overall health, including any physical conditions that might affect their cognitive abilities.
Cognitive Tests: These tests evaluate memory, problem-solving skills, and the ability to understand and communicate. Common tests include the Mini-Mental State Examination (MMSE) and the Montreal Cognitive Assessment (MoCA).
Psychiatric Evaluation: A mental health professional may assess for conditions like depression, anxiety, or dementia, which can impact decision-making abilities.
Legal Process
The legal process for determining incapacity involves several steps. First, a petition is filed with the court by a family member, friend, or concerned party. Then, the court conducts a hearing where evidence, including medical reports and testimonies from healthcare professionals, is presented to establish the person's incapacity. The court may appoint a guardian ad litem to represent the person's interests, investigate the situation, and report back to the court.
Court’s Decision
After reviewing all the evidence, the court decides on the level of incapacity. If the person is deemed partially incapacitated, they can make some decisions but require assistance with others. If found fully incapacitated, the court may appoint a guardian to manage all personal and financial decisions on their behalf.
Importance of Legal Documentation
Having proper legal documentation in place can streamline this process:
Durable Power of Attorney (POA): A POA allows you to designate someone to make financial decisions on your behalf if you become incapacitated.
Health Care Proxy: This document designates someone to make medical decisions for you if you’re unable to do so.
Living Will: A living will outline your preferences for medical treatment in situations where you cannot communicate your wishes.
Determining incapacity involves a combination of medical and legal evaluations to ensure that individuals who can no longer manage their own affairs receive the appropriate care and support. Consulting with an experienced estate planning attorney can provide you with the guidance needed to protect your interests and those of your loved ones.
For more information, contact our office at Askew & Associates, P.A. by calling 954-546-2699.
Disclaimer: this blog post is not intended to be legal advice. We highly recommend speaking to an attorney if you have any legal concerns.