Incapacity in Arkansas - PowerPoint PPT Presentation

About This Presentation
Title:

Incapacity in Arkansas

Description:

This presentation talks about incapacity in Arkansas and the importance of incapacity planning. – PowerPoint PPT presentation

Number of Views:45

less

Transcript and Presenter's Notes

Title: Incapacity in Arkansas


1
INCAPACITY in ARKANSAS
2
What is incapacity?
3
Incapacity has several different meanings in
the legal arena
4
  • During legal proceedings,
  • the terms generally refers to an individuals
    ability to comprehend the nature and consequences
    of those proceedings

5

Capacity can also be used to describe someones
qualification to enter into a binding legal
agreement
6
  • In estate planning,
  • the term capacity refers to an individuals
    ability to manage
  • his or her own affairs or make important decisions

7
Legal Incapacity
8
Under the law, a person must be legally
competent in order to enter into a contract or
execute a will or other legally binding document
9
Competency has to do with not only mental
capacity, but also age and maturity
10
For instance, in order to enter into a contract
in most states you must have reached the age of
majority
11
Mental Incapacity
12
  • As most of us are aware, there are various
    medical conditions that can lead to incapacity,
    like Alzheimers disease, dementia and psychosis

13
AGE AND SENILITY can sometimes diminish an
individuals ability to care for themselves or
make responsible decisions
14
However, incapacity should never be determined
based solely on a medical diagnosis
15
Temporary Incapacity
16
  • Many conditions or events render an individual
    incapacitated only temporarily meaning that
    when the situation passes or has been resolved,
    that persons capacity can return

17
One example of a temporary condition causing
incapacity would be intoxication
18
A contract that is signed while a person is
under the influence of drugs or alcohol can be
voidable
19
How do you determine if someone is incapacitated?
20
  • Determining incapacity for the purposes of estate
    planning is SOMETIMES A NECESSARY PROCESS

21
That is because many estate planning instruments
only become active when the person who executed
the instrument has become incapacitated
22
  • It is also true that some estate planning tools
    are no longer effective when the person is
    incapacitated

23
However, determining incapacity can be a
difficult and emotional process
24
Who has the authority to determine incapacity?
25
  • When a legal determination must be made regarding
    an individuals capacity, it is done by a court

26
Generally, a court will request and review the
medical opinions of experts who have examined
that individual for the purpose of deciding
capacity
27
When there is no challenge to a finding of
incapacity, the court will usually rely on the
medical records
28
But if the individual or his or her family
members contest the finding, then the court will
request an independent psychological analysis,
for example
29
Complete v. Partial Incapacity
30
If an individual is declared totally
incapacitated by a court, he or she will lose the
right to make decisions regarding personal
welfare and finances
31
This includes decisions pertaining to healthcare
and living arrangements
32
On the other hand, a finding of partial
incapacity will allow the individual to retain
the ability to make certain decisions
33
Can a determination of incapacity be reversed?
34
Just as incapacity is not always permanent, a
finding of incapacity can be reversed
35
FOR EXAMPLE, once a coma or illness has been
effectively treated, the individuals mental
capacity can return
36
It can then be demonstrated to the court that the
individual in question has regained his or her
capacity
37
The determination can then be reversed and
decision-making authority reinstated
38
What should I do if I believe a loved one has
become incapacitated?
39
Someone who is mentally impaired may start to
show signs of needing assistance in their
personal affairs, such as becoming increasingly
forgetful or disoriented
40
If that happens, it may be time to consider what
type of assistance they need
41
In some cases, that persons needs can be taken
care of informally by FAMILY OR FRIENDS
42
This would be preferred. However, sometimes more
formal control of their affairs may be necessary
43
Guardianship is one solution, however, it is not
the easiest or least expensive
44
A Power of attorney may be an alternative
45
A good way to avoid a guardianship is to execute
a durable power of attorney for healthcare and
finances or property
46
A power of attorney is not complicated and much
less expensive than a guardianship
47
More importantly, the individual is able to
choose the agent, rather than having a guardian
appointed by the court
48
Click to visit arkansas-estateplanning.com
Write a Comment
User Comments (0)
About PowerShow.com