You probably don’t like to think about it; however, 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. To help you plan for the possibility, an Indianapolis incapacity planning attorney at Frank & Kraft explains who decides if someone is incapacitated and how that decision is made.
Do I Really Need to Worry about Incapacity at My Age?
Because the term “incapacitated” is so often associated with age related conditions such as Alzheimer’s disease, people just as frequently associate the possibility of becoming incapacitated with old age. The reality, however, is that you don’t have to be a senior citizen to suffer a period of incapacity. In fact, incapacity can strike anyone at any age as a result of a debilitating illness, a catastrophic accident, or even a serious workplace injury. To put the possibility of becoming incapacitated prior to reaching your retirement years in perspective, 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 Indiana?
The concept of “incapacity” isn’t limited to one specific scenario. Instead, it can come up under several different scenarios. As such, the law sometimes uses different definitions or criteria to define the concept of incapacity, depending on how and when it is used. By the same token, there is often more than one person with the authority to declare you incapacitated. For example, if you are petitioning to become a parent’s guardian in the State of Indiana you will look to Indiana Code § 29-3-1-7.5 which defines incapacity as someone who is unable to manage, in whole or in part, the individual’s property, or to provide self-care; or both because of insanity, mental illness, mental deficiency, physical illness, infirmity, habitual drunkenness, excessive use of drugs, incarceration, confinement, detention, duress, fraud, undue influence of others on the individual, or other incapacity; or has a developmental disability (as defined in IC 12-7-2-61 ).
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 Appointment of Health-Care Representative and Power of Attorney, 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 about your health care. In the case of an advance directive, it will be a physician who determines that you are incapacitated.
Contact an Indianapolis Incapacity Planning Attorney
For more information, please download our FREE estate planning worksheet. If you have additional questions relating to incapacity, contact an experienced Indianapolis incapacity planning attorney at Frank & Kraft by calling (317) 684-1100 to schedule an appointment.
Paul A. Kraft, Estate Planning Attorney
Mr. Kraft assists clients primarily in the areas of estate planning and administration, Medicaid planning, federal and state taxation, real estate and corporate law, bringing the added perspective of an accounting background to his work.
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