What Is Incapacity Planning?
While most people understand the importance of preparing a will, not everyone is aware that it is equally important to plan for incapacity. This is true no matter what your age or current health. Incapacity can strike suddenly and unexpectedly. If you have not planned for incapacity, then no one will be able to make certain decisions on your behalf without first obtaining a court order enabling them to do so. Being prepared will ensure that you and your family are protected.
Our Edmonton probates and wills lawyers may be able to answer whatever questions you have about incapacity planning.
What Is incapacity?
Incapacity is defined as the inability to understand:
- - the facts relevant to making a particular decision,
- - the potential consequences of making (or not making) the decision.
For example, someone who lacks the capacity to make financial decisions may lack the ability to understand the facts about their financial assets or income, or the consequences of deciding to use those assets or income in a particular way.
Incapacity is not only something about which elderly people need to be concerned. Many of us think of dementia, Alzheimer's, and related illnesses when we think of incapacity, but there are any number of medical conditions and injuries that can lead to either temporary or permanent incapacity, many of which are not age-related.
Anyone over the age of 18 can plan for incapacity by making a personal directive and an enduring power of attorney. You can revoke or replace your personal directive or enduring power of attorney at any time as long as you still have the capacity to do so.
A personal directive allows you to name a person to make personal decisions for you in the event of your incapacity. Personal decisions can include those related to:
- - medical treatments
- - where or with whom you want to live
- - instructions for the care of any minor children you have
- - instructions related to recreation, employment and/or education
Your personal directive can include specific instructions for your agent or agents, or can give them the discretion to make decisions that they think is best for you in the circumstances.
Enduring Power of Attorney
An enduring power of attorney allows you to name a person you trust (the attorney) to make financial decisions on your behalf. You can prepare an enduring power of attorney that comes into effect immediately or at a specified time in the future. If you want your enduring power of attorney to come into effect only in the event that you lose capacity, then the document should indicate how you want your capacity determined. If the document does not specify, two separate medical practitioners will be required to make a written declaration as to your incapacity before the document comes into effect.
Contact Our Edmonton Probates and Wills Lawyers Today for a Consultation
In order to be valid, both a personal directive and an enduring power of attorney must have been prepared before your loss of capacity. It may be in your best interests to prepare sooner rather than later. Contact us today to discuss your specific circumstances with our Edmonton probates and wills lawyers. Our team is here to help address your questions on incapacity planning, and more.
*Please note that this article does not constitute legal advice, but is a general overview on the subject of incapacity planning. For legal advice, please consult with a lawyer.