INCAPACITY PLANS IN NEW YORK FOUNDATIONAL IDEAS

While Creating an Incapacity Plan Will Require You and Your Attorney to Sit Down to Draft Some Specific Legal Documents, Understanding What Incapacity Is,

What an Incapacity Plan Is, and How these Issues Can Affect You and Your Family Is Essential

ANTHONY J. MINKO New York Estate Planning and Elder Law Attorney

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One of the more important issues that every estate plan must address is the

question of what you want to happen should you lose your ability to express

yourself or make choices. The ability to make choices for ourselves is something

that lies at the very heart of what we consider to be personal freedom. That we

might one day lose this ability is a daunting idea, but one that is nevertheless

necessary to address if you want your estate plan to be complete.

In this first of our two-part series on incapacity planning, we are going to take a

look at some foundational ideas. While creating an incapacity plan will require

you and your attorney to sit down to draft some specific legal documents,

understanding what incapacity is, what an incapacity plan is, and how these

issues can affect you and your family is essential.

CAPACITY AND INCAPACITY

The idea of legal

capacity is one

that most of us

take for granted

on a daily basis.

Each of us assume

that we have the

right and authority

to make our own decisions. We don't, for example, have to seek a judge's

approval if we want to move out of state, change jobs, or decide where we want

to go for lunch.

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While these examples might seem trivial to you, they are emblematic of the

kinds of problems your family and loved ones will have to face if you should ever

become incapacitated. An incapacitated person is someone who does not have

the mental ability to make reasonable choices on his or her own behalf. The law

presumes that every person age 18 or older in the state of New York has this

requisite mental capacity. In general, unless a judge determines that you lack

this ability, you are free to make choices for yourself.

An incapacitated person, on the other hand, no longer has this legal authority.

Instead, when a person becomes incapacitated, someone else will have to make

decisions on that person's behalf.

INCAPACITY PLANNING

If incapacitation means a person is

no longer able to make choices,

incapacity plans are simply

collections of tools or legal

documents that allow a capable

person to plan ahead for time when

he or she might become

incapacitated. Through an incapacity

plan, capable adults can make decisions that will take effect if and when that

person loses his or her ability to make choices.

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Let's look at a common situation in which incapacity plans might be useful. Let's

say that you have an aging parent. As a normal part of the aging process, people

typically lose many of the abilities they had while they were younger. However,

unless an elderly person experiences a significant and serious medical condition,

they typically don't lose legal capacity because they retain enough of their

cognitive abilities to still make choices.

Contrast this with an elderly person who is diagnosed with Alzheimer's disease.

As a degenerative disease, Alzheimer's

typically leaves people unable to make

choices or understand the

consequences their choices might have.

Many people suffering from Alzheimer's

become incapacitated, and require

someone else to make decisions on

their behalf.

So, if you have an aging parent who has Alzheimer's disease and who has not

created an incapacity plan, it will fall to a New York Court to determine who

should make decisions on your parent's behalf. On the other hand, should your

parents take the time to create an incapacity plan, they can choose for

themselves who they want to serve as their representatives.

PLANNING TOOLS

So what kind of tools will you include in your incapacity plan? The answer to this

question will differ depending on a number of factors. Though we will go into

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much more detail about the individual tools available to you in New York in our

next discussion on incapacity planning, for now, what you should realize is that

there are two main types of planning

tools available.

The first type of tool is one that allows

you to choose representatives. Should

you ever become incapacitated, these

incapacity planning devices will give

another person, or organization, the

legal authority to represent you.

Depending on the type of tool you create, you can give your representatives

power to manage your property, financial affairs, personal affairs, and even

make health care decisions on your behalf.

The second type of tool that most incapacity planning tools utilized is the kind

that allows you to make specific choices. With tools that allow you to make

specific choices, you can make decisions that will apply when you become

incapacitated. If you combine these two tools together, your representatives will

have to abide by the choices you make.

INDIVIDUAL PLANS, TAILORED ADVICE

The idea of thinking about a future in which you were no longer able to make

decisions is not a pleasant prospect. In fact, most people are so reluctant to

address incapacity planning issues that they never get around to making a plan

of any kind. While you are not legally obligated to creative an incapacity plan,

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doing so can be one of the best decisions you ever make. If the time ever comes

when you are incapacitated, your plan will leave clear instructions to your family

members and loved ones. Without those instructions, you leave it up to the

people closest to you to make decisions for you when they will be in an

emotional state because you become incapacitated.

The attorneys and staff at the Minko Law Office have a lot of experience

assisting our clients in developing incapacity plans that meet a wide variety of

needs and desires. If you haven't already begun planning efforts of your own,

contact us as soon as possible so we can help you get started.

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About the Author

Anthony J. Minko

As an attorney in private practice in Brooklyn, New York,

Anthony J. Minko provides a wide range of estate planning

services to clients throughout the New York City area. Mr.

Minko creates customized estate plans that enable families to

preserve their wealth and provide for the security of their

loved ones both during and after their lifetime. He dedicates

himself to informing the public of the need for careful

attention to their specific situations, regularly presenting

educational seminars addressing the growing importance of estate planning.

Before forming Minko Law Office, Mr. Minko spent over four years as a trial

attorney handling civil and commercial litigation in New York state and federal

courts. He also served the senior community as a member of Wells Fargo Bank

and the New York City Law Department. Mr. Minko is a member of the American

Academy of Estate Planning Attorneys, The National Academy of Elder Attorneys,

and several local and state bar associations.

Minko Law Office

1766 Cropsey Avenue

Brooklyn, NY 11214

Phone: (718) 238-1727

Fax: (718) 971-1059

www.MinkoLaw.com