INCAPACITY AND INCAPACITY

PLANS IN ARIZONA

Larry Deason and Shawn GarnerEstate Planning and Elder Law Attorneys in Yuma Arizona

Regardless of Your Personal Circumstances or Choices, It's Vital For Every Adult in the State of Arizona to

Have an Incapacity Plan in Place as Soon as Possible

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In this discussion of important estate planning topics, we're going to begin a two-part discussion on the topic of incapacity, and incapacity plans. Incapacity planning is an essential part of

creating an estate plan, and no estate plan can be complete unless it addresses incapacity planning issues.

Regardless of your personal circumstances or choices, it's vital for every adult in the

state of Arizona to have an incapacity plan in place as soon as possible. Failing to have

such a plan can be a significant mistake. To help explain why that's true, let's take a

look at some important issues.

Capacity

The idea of being a capable adult is probably one that you take for granted on a daily

basis. You probably rarely think about the legal realities involved in making choices. For

example, have you ever thought to consider what laws are involved in deciding where

you want to eat for lunch? How about choosing where you want to live, or where you

want your children to go to school?

All of these choices take the idea of capacity as a given. Under the law, adults who have

the mental ability to make reasonable decisions are presumed to be legally capable.

This means that they have the authority to make their own decisions without outside

approval, review, or acceptance.

In general, every person age 18 or older in the state of Arizona has legal capacity unless

a court says otherwise.

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Incapacity

If capacity is the legal ability to make decisions on your own, incapacity is the inability to

do so. When a person is legally incapacitated, that person cannot make legally binding

decisions. An incapacitated person, for example, cannot make choices about health

care, financial issues, or even more mundane day-to-day decisions. Incapacitated

people, unlike those who have capacity, need others to make decisions on their behalf.

Even though there are many ways an otherwise capable person can become

incapacitated, incapacitation typically results from one of two main causes: age and

unexpected illness or injury. All of us lose some abilities as we age, but some people lose

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so much of their cognitive abilities that they are no longer capable of making choices.

Similarly, people suffering from serious medical conditions, such as dementia, or those

who have been involved in a serious accident can also lose capacity.

Incapacity Plans

Losing the ability to make choices is not something a lot of us want to think about.

However, when you develop an incapacity plan, that's exactly what you have to do. Your

incapacity plan is designed to allow you to make choices now, while you are still

capable. Should you one day lose your capacity, the incapacity planning choices you

make through your plan will take effect.

In other words, you can effectively allow yourself the opportunity to make decisions

while you are incapacitated if you take the time to create an incapacity plan now, while

you are still capable.

However, it's vital to point out that, should you become incapacitated prior to making a

plan, you will no longer have the ability to make choices on your own.

Incapacity Planning Tools

So if your incapacity plan allows you to make choices, what kind of choices will you be

able to make? Though we will discuss in more detail the specific kinds of tools and

choices your plan will allow you to address in our next discussion, for now what's

important to understand is that your plan will allow you to make two main types of

choices: choices about representatives and choices about specific events.

When you become incapacitated, a court will have to appoint someone to make choices

on your behalf. However, if you make an incapacity plan, you effectively take this choice

out of the court hands, and make the decision yourself.

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Similarly, the kinds of choices your representative will make when you are incapacitated

will cover any number of different topics. For example, your representative will make

decisions about the kinds of healthcare treatments you receive, as well as decisions

about how to manage your finances, your property, and make other day-to-day choices.

When you develop an incapacity plan, you can address these specific, individual choices

in as much or as little detail as you like.

For example, let's say that you suffer serious injury that leaves you comatose. In your

incapacity plan you appoint your spouse as your representative and give your spouse

the freedom to make whatever decisions she deems appropriate.

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Let's contrast this with a slightly different situation. Let's say that, instead of naming

your spouse as your representative, you choose several people to serve as your

representative over different areas of your life. Each of these you give permission to

make decisions, but you also limit the kinds of decisions they make by including specific

directions in your incapacity planning tools.

Individualized Plans

If there is a single lesson you should take away from this discussion on incapacity

planning, it's this; everyone needs a plan, and every plan needs to be individually

tailored to fit the needs of the person making it. Even though the legal issues and

questions your plan addresses will likely be the same issues that every other plan

addresses, no one can make your incapacity planning decisions for you. It's up to you to

make the difficult choices and to ensure that you make them in a legally enforceable

manner.

The attorneys and staff at Deason Garner can help you create a plan regardless of your

age, circumstances, or individual needs. Though we have years of experience assisting

our clients developing incapacity plans, all of our experience will not do you any good

until you take the time to reach out to us for assistance. Once you do, we can sit down

with you, discuss the relevant issues, and get started on the process of crafting an

incapacity plan that offers you as many protections as possible.

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About the Authors

Larry Deason and his staff have been providing quality legal services for clients since 1971. Their mission is to assist people who are concerned about protecting their families from the devastating legal and financial impacts of disability, death, and taxes.

Because he believes in the importance of an informed public, Deason spends considerable time educating consumers about Estate Planning issues. He writes a monthly Estate Planning column in The Sun, and the firm he regularly conducts Free monthly seminars on various Estate Planning topics.

Deason and Garner, along with their staff, that in many instances, Living Trusts offer clients a proven and powerful tool for protecting their families from the expense and delay of probate, as well as a strategy for eliminating or minimizing federal taxes.

Deason’s firm is staffed with paralegals and consultants who are experienced and trained in a variety of Estate Planning areas. The aim of each member of the firm is to help clients accomplish their Estate Planning goals while taking the mystery out of the whole process. We take pride in knowing that our clients feel “peace of mind” once the planning process is completed.

The firm is always available for both Arizona residents and visitors alike to offer additional information about options with available with estate planning.

Deason Garner Law Firm242 West 28th Street, Suite A

Yuma, AZ 85364Phone: (928) 783-4575

www.DeasonGarnerLaw.com

Larry Deason

Shawn Garner