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Charleston Estate Planning & Asset Protection Blog

Sunday, January 20, 2019

Preparing for Your Incapacity

Who will make financial decisions on my behalf if I become incapacitated?

None of us wish to consider the possibility that we may one day become disabled, but the reality is that mental or physical incapacity could await any one of us.  According to the Social Security Administration, over 56 million Americans live with disabilities, while 38 million suffer from severe disabilities.  Along with physical disabilities, mental infirmities like dementia occur at quite high rates.  Millions of older Americans suffer from dementia and Alzheimer’s disease, which can rob their ability to care for themselves and manage their affairs. 


What is Legal Incapacity?


In the legal sense, incapacity is defined as the physical or mental inability to make rational decisions or manage one’s affairs.  An incapacitated person may be unable to make decisions due to a physical inability to communicate, which could occur due to a serious accident or illness.  Incapacity can also happen when a mental condition, which can be due to mental illness, mental infirmities, or even drug use, renders the individual unable to make reasoned decisions.  


Should you become incapacitated without having any advanced estate planning, the court will be forced to appoint a guardian to make decisions for you.  Often, a loved one will be forced to pursue the uncomfortable task of having a parent declared incapacitated through court proceedings.  From there, the child or another loved one can move to be appointed guardian.  The entire process can be time consuming, stressful, and potentially hurtful to all parties involved.

Planning for Incapacity with Powers of Attorney


To potentially avoid the need for guardianship procedures, you can in advance create some documents that will allow a named loved one to step in if you become incapacitated.  With a health care power of attorney, you can name a trusted individual to make health care decisions on your behalf if you are incapacitated.  You can set standards for determining incapacity within the document.  Next, you can create a financial power of attorney.  Like a healthcare power of attorney, this document names a loved one who can make financial decisions on your behalf if you are incapacitated.  


You can further create a revocable living trust.  Within your trust, you can provide for the distribution of your assets, while also inputting an incapacity provision.  Within the trust, you can set out what will be defined as a disability, how to determine if you are disabled, and whom has the authority to declare you incapacitated. Contact an estate planning lawyer to get started preparing for your potential incapacity today. 


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Wiles Law Firm, LLC helps clients with their estate planning needs in Charleston, South Carolina and the surrounding areas such as West Ashley, Summerville, North Charleston, Mount Pleasant, and John's Island.

Information on this website is not legal advice. Further, viewing of the enclosed information does not create an attorney-client relationship with Wiles Law Firm, LLC. Matters will be handled by attorneys who primarily practice out of our office in Charleston County located at 852 Lowcountry Blvd., Ste. 101, Mt. Pleasant, SC 29464. M. Emerson Wiles, III is the attorney responsible for this advertisement.

Any result Wiles Law Firm, LLC may achieve on behalf of one client in one particular matter does not necessarily indicate similar results can be obtained for other clients. Please contact a South Carolina estate planning attorney or one of our attorneys with Wiles Law Firm, LLC for a consultation regarding your unique estate plan.



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