Incapacity Planning: When is the Right Time?

Diminished capacity is a sensitive subject for aging adults. And why wouldn’t it be? After decades of autonomy, the emotional, cognitive, and physical challenges of life can take their toll, threatening independence and exposing weakness. However difficult, incapacity can be discussed, and decisions documented in a detailed aging plan, giving direction for a time every family hopes never to face.

For someone caring for an aging parent, it can feel like every forgotten name or misplaced item may signal the start of diminished capacity. Sometimes a missed appointment is just a scheduling mix-up but if it’s happening consistently – there could be a reason to be concerned. When is it time to think about incapacity planning?  Let’s start by learning more about what determines incapacity, which signs to look for, and why it’s never too early to see an Elder Law Attorney.

Incapacity Planning

What is Incapacity in Florida?

An individual is considered incapacitated when a judge determines they cannot make decisions about their personal and financial affairs due to physical or mental limitations. Specifically, the judge evaluates if an individual can manage their property and “meet essential requirements” for health and safety. This assessment goes beyond lost keys and missed appointments, moving to protect a person who is unable to obtain health care, food, shelter, or maintain personal hygiene.

How is Incapacity Determined in Florida?

Any competent person can file a Petition to Determine Capacity with the court if they have concerns about the safety and well-being of another person. The court will appoint a three-person examining committee that includes a physician and two other medical professionals. The members of this committee meet with the alleged incapacitated person and provide the court with their findings which may or may not lead to a hearing.

Steps for Guardianship

  1. File Petition to Determine Capacity
  2. Examining committee assigned by judge
  3. Final Hearing
  4. Assign a guardian

The steps to guardianship in Florida are more complicated than they appear. When a petition is filed, the family (or person familiar with the alleged incapacitated person) makes the statement that their loved one is incompetent in managing their affairs and needs protection. This process can remove some or all rights afforded to an individual, including managing life activities, finances, medical care, where they live, and even if they can continue to drive and/or vote.

What are Warning Signs of Diminished Capacity?

Florida is in the top three states with the highest number of people with Alzheimer’s dementia. With over 580,000 people aged 65 and older living with Alzheimer’s, it’s hard not to be a little sensitive and see the signs all around us. While it’s important to be aware of the signs, don’t be too quick to diagnose yourself (or someone else).

Red Flags of Diminished Capacity

Poor or declining financial judgment

Difficulty understanding previously understood concepts

Deteriorating checkbook and/or bill management

Difficulty with basic math

Delaying action once you’ve recognized the signs of diminishing capacity can make addressing the issues more difficult. Ideally, your family will have had conversations long before these signs appear. Watching a loved one experience cognitive impairment is challenging enough – prepare for these emotional and difficult times with an effective incapacity plan.

Incapacity Planning

How Do I Avoid Guardianship in Florida?

The guardianship process isn’t just for older people with diminished cognition. Unfortunately, accidents happen. Young adults suffer life-altering incidents. Developmental disabilities leave individuals with a life-long need for supervision and support. Decision-making authority for financial and healthcare decisions can be memorialized in documents for scenarios beyond the incapacity resulting from diseases such as Alzheimer’s and other forms of dementia.

Guardianship is the last resort after examining less restrictive alternatives. One way to avoid guardianship (in most circumstances) is with a Durable Power of Attorney and Healthcare Surrogate. Schedule a consultation with a qualified Elder Law Attorney to clarify the importance of estate planning, including documents that protect you in case of incapacity.

How Do I Plan for Incapacity?

The best way to plan for incapacity is with a thoughtful, detailed aging plan created with an experienced Elder Law Attorney. An elder law specialist will work with you to craft documents that accurately reflect your wishes in the event of incapacity. No one wants to think that such a time will come, but it is best to be prepared. Whether through an advancing disease like Alzheimer’s or an accident that leaves you immediately incapacitated, having a plan in writing is the only way to be sure your legacy – and your family – is protected.

What if I Don’t Plan for Incapacity?

When you fail to plan for incapacity, you silence your voice when it is needed most. Through a thoughtful estate plan and advance directives, your family can be confident they are following your wishes if you are ever unable to speak for yourself. Without Incapacity Planning, your family will be forced to find other ways to advocate for you – up to and including guardianship.

Why leave your family without the confidence they deserve as they struggle to live without your voice? In the best-case scenario, you will never need these documents. However, having them on hand is one of the best things you can do for yourself – and your family.

Incapacity Planning

Hire an Elder Law Attorney for Incapacity Planning

Your Elder Law Attorney can offer peace of mind with a plan that gives voice to your wishes and comfort to those who need direction in a difficult time. It’s never too early to create a plan.  This dynamic document can change as you move through milestones of life. Through marriage, children, retirement, and (great) grandchildren, your elder law specialist can update the document as often as needed.

Elder Law Attorneys are the single most satisfying answer to Incapacity Planning. They are a Resource We Love because their experience and knowledge help people of any age retain their voice in the most impossible circumstances. Learn more about the positive impact of Elder Law Attorneys in the Legal and Financial Section of our Blog.

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