What is Incapacity and Why do You Need to Plan For It

Posted on

Oct 27, 2013

Book/Edition

Colorado - Colorado Springs

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Incapacity planning is simply a collection of legal documents that you create in anticipation of possibly becoming unable to express your wishes or make decisions.
What exactly is incapacity and why does it matter? Lets take a look at some basic concepts you should understand before you begin making an incapacity plan.
Legal Incapacity
Under Colorado probate laws, and incapacitated person is someone who cannot effectively receive or evaluate information. That persons inability to make or communicate is so significant that he or she can no longer provide self-care or look after their needs for health and safety even if reasonable technological assistance is available.
In simpler terms, an incapacitated person is someone who has lost the ability to make choices or who can no longer care for themselves.
Incapacity Determination
When the court is asked to determine if someone is incapacitated, there is no single test the court uses to make its decision. Instead, the court looks at each case individually and determines what the adults capabilities are. In some situations the court might determine that the person is entirely incapacitated and will appoint someone to make all decisions on that persons behalf. In other situations it might determine that a person is only partially incapacitated, and will appoint someone to make limited types of decisions, such as managing the persons property or finances.
Incapacity Planning
Every capable adult in Colorado can make his or her own incapacity plan until a court deems the person incapacitated and unable to make choices. These plans allow you to make your choices in advance of becoming incapacitated, even though this may never happen to you.
Through such a plan you can, for example, give someone else the ability to manage your finances, property, and day-to-day concerns. Should you ever become incapacitated this person will gain the right to make these decisions without the necessity of a court having to step in and appoint someone to do them on your behalf.
You can only make an incapacity plan if you are currently capable. If you wait too long and lose your ability to make choices, you leave it up to a court to make the choice. As you wont be able to express your wishes at the time, this could mean that the court will appoint someone of whom you do not approve.
Editors Note: This article was submitted by Catherine Hammond.
Catherine is an attorney with Hammond Law Group and may be reached at719-520-1474 or by email at info@coloradoestateplan.com.

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