An Ohio Probate Attorney’s Answer to the Question: ‘What is Incapacity and How is it Determined?’
January 12th, 2012
Ohio probate attorneys frequently get asked by clients to explain what 'incapacity' means. This is a common question because many power of attorney documents, living wills and revocable trusts have powers or provisions that become active when the creator is determined to be incapacitated.
Typically, incapacity means a person is unable to manage their own financial affairs or look out for their own physical well-being. Age, infirmity, dementia and mental illness are common reasons for declaring incapacity. Incapacity may refer to someone in a coma or otherwise unconscious and unable to respond to questions. But it can also refer to a victim of stroke or dementia who can no longer make rational decisions. It may also apply to a minor who is not old enough to make good personal and financial decisions.
Sometimes incapacity is temporary, such as a person who revives from a coma or recovers from dementia, or a child who reaches the age of 18. In most of these cases, it is up to the ward (the person previously designated as incapacitated) to demonstrate to the court that they are no longer incapacitated. If successful, the ward regains control of their life and finances.
How is Incapacity Determined and Can Ohio Probate Attorneys Influence the Determination
To determine incapacity, the court usually reviews the opinions of medical experts who have examined the person in question. If no one is contesting whether the person is incapacitated, the court usually relies on written statements signed by medical doctors.
If someone contests the incapacity claim, usually done by a family member or the person in question, then the court employs psychiatrists and psychologists to help determine the person's capacity. In these cases, a myriad of tests are used to render an opinion to the judge.
If a person's capacity is in dispute, it's important that both sides have Ohio probate attorneys representing them. Capacity can be elusive and difficult to determine, so it's important to have a representative familiar with what Ohio probate courts look for in determining capacity.
An individual declared incapacitated loses all rights to make decisions regarding their welfare and their finances — they can't make medical decisions, choose where to live, or decide how to spend their money. In some cases, a person could have capacity to manage their personal and medical decisions but not their finances, so it's important to ensure that overall incapacity is not declared when only partial incapacity is necessary.
An Ohio probate attorney's assistance can help ensure a person's capacity or incapacity is documented properly and obtain opinions from highly credible experts to help the court make a proper determination. Doctors rarely appear in court due to the high cost (which must be paid by the ward regardless of who initiates the petition) and a lack of available and willing experts. This situation further necessitates the assistance of Ohio probate attorneys in an incapacity determination.
Ohio Probate Attorney's Warning Regarding Use of Power of attorney to Avoid Court-Appointed Guardianship
Oftentimes a person will have a durable power of attorney drafted to appoint someone to make decisions if they become incapacitated. While this may avoid a court-appointed guardian, most power of attorney forms are vulnerable to abuse.
Most commonly found power of attorney forms require two physicians to sign off on incapacitation in order for the power of attorney to take effect. Unfortunately, these signatures are often never obtained before the assigned guardian takes control, and there is no supervision of the power of attorney because it's handled outside of court. This can lead to someone else petitioning for guardianship, and a successful petition terminates the power of attorney.
Another failure of power of attorney forms is that most require the signatures of any two physicians in the world to verify incapacity and are not specific about who those physicians must be. Occasionally, this requirement is abused by hiring unscrupulous doctors, usually in another part of the world, to sign off on the creator's incapacity.
To avoid the need for Ohio probate attorneys in an incapacity hearing, it's recommended that individuals set up a revocable to trust to assign control of their finances and medical decisions in the event of incapacitation. At the very least, a person's power of attorney should be effective immediately or require that the creator's family physician sign off on person's incapacity. These methods minimize potential for abuse while usually avoiding court-appointed guardianship.
If you need to set up power of attorney or a trust to protect your interests in case of incapacity, the Dayton, Ohio probate attorney's office of Gudorf Law Group can assist you.
Schedule a free initial consultation at the Dayton, Ohio probate attorney's office of Gudorf Law Group by calling toll-free 1-877-483-6730.