As much as we all prefer not to think about it, the reality is that the possibility of becoming incapacitated at some point down the road does exist. Because it is a possibility, it should be addressed in your estate plan to ensure that your wishes are honored in the event you do become incapacitated. It also helps to how incapacity is defined and who decides that someone is incapacitated. With that in mind, the Minot elder law attorneys at German Law Group explain who decides if someone is incapacitated.

Incapacity Can Happen to Anyone

People typically associate the possibility of becoming incapacitated with old age. While the natural aging process can result in incapacity, as can conditions such as Alzheimer’s disease, you don’t have to be a senior to end up incapacitated. On the contrary, incapacity can strike anyone at any age as a result of a workplace injury, a serious illness, or even a car crash. To help you understand the need to plan for the possibility of your own incapacity, consider the following facts and figures:

Just over 1 in 4 of today’s 20 year-olds will become disabled before they retire
In December of 2012, there were over 2.5 million disabled workers in their 20s, 30s, and 40s receiving SSDI benefits.
A typical 35 year-old has a 24 percent chance of becoming disabled for 3 months or longer during his/her working career.
Moreover, that same worker has a 38 percent chance that the disability would last 5 years or longer, with the average disability for someone like him/her lasting 82 months
Stroke is a leading cause of long-term disability and 34 percent of people hospitalized in 2009 for stroke were younger than 65 years of age

How Does the Law Define Incapacity in North Dakota?

The need for a legal definition of “incapacity” could come up under several different circumstances. Consequently, there may be more than one definition of incapacity and there may be more than one person with the authority to declare you incapacitated. For example, if someone has petitioned to become your legal guardian, Section 30.1-26-01 of the North Dakota Century Code governs the definition of incapacity. According to that section, an incapacitated person is:

“any adult person who is impaired by reason of mental illness, mental deficiency, physical illness or disability, or chemical dependency to the extent that the person lacks capacity to make or communicate responsible decisions concerning that person’s matters of residence, education, medical treatment, legal affairs, vocation, finance, or other matters, or which incapacity endangers the person’s health or safety.”

In the context of a guardianship proceeding, it will ultimately be a judge who determines the issue of incapacity. Someone must petition to become your guardian. The court may order you to be evaluated and a report submitted to the court. That report, along with testimony offered at a hearing, will be used by the judge to decide of you are incapacitated and in need of a guardian.

The definition of incapacitated is also relevant when discussing the use of an advance directive. The North Dakota Power of Attorney for Health Care, which allows you to appoint an Agent to make health care decisions for you if you are unable to make them yourself, must also define incapacity. Your Agent’s authority goes into effect when your doctor determines that you are no longer able to make or communicate your health care decisions.

If incapacity must be determined in order to trigger the authority of an Agent under a Power of Attorney for Health Care, it will be a physician who declares you to be incapacitated.

Understandably, you likely want to decide who will step in and take control of your assets and/or make decisions for you if you are incapacitated. The good news is that careful estate planning allows you to do just that.

Contact Minot Elder Law Attorneys

Please join us for an upcoming FREE seminar. If you have additional questions or concerns about the best way to include incapacity planning in your estate plan, contact the Minot elder law attorneys at German Law Group by calling 701-738-0060 to schedule an appointment.