Planning for Incapacity in the Wake of Rising Alzheimer’s Rates

Incapacity is defined as the inability to make reasonable decisions regarding your financial and personal affairs. You can become incapacitated after suffering a traumatic brain injury or experiencing a mentally debilitating illness. For many seniors, incapacity often accompanies a diagnosis of Alzheimer’s, Parkinson’s, or other diseases marked by dementia.

The number of families who will be involved with the care of a senior with Alzheimer’s or another type of dementia is staggering. In 2016, more than five million Americans were living with the debilitating disease, for which there is no cure and only limited treatment.

planning for incapacity

Incapacity can have severe consequences for seniors and their loved ones, particularly if they have not planned for it in advance. Friends and family often have a very difficult time paying bills, handling health care, and other personal matters when loved ones have not appointed anyone to make decisions on their behalf if they have lost capacity.

The best way to deal with incapacity is to plan for it while one is still of sound mind. Some of the issues that need to be addressed include:

Durable Power of Attorney

Putting a power of attorney in place ensures that a designated agent can make financial decisions on your behalf should incapacitation occur – which can better protect assets and ensure that dependent heirs have access to financial resources.


By securing your assets by placing them into a trust, and appointing a trusted individual to serve as the trustee, incapacity concerns can be mitigated. In addition, developing a trust-based estate plan can provide for any inheritances and address issues such as estate taxes.

Important note: A Will alone does not take effect (e.g., provide for any inheritances) if you were to become incapacitated, as it is a death document only.

Healthcare Proxy/Healthcare Power of Attorney

This document enables you to designate an individual who can make medical decisions on your behalf should you become incapacitated.

Medicaid Planning

Steps can be taken to help protect assets from the cost of long-term care in a nursing home and enable you to qualify for nursing home benefits (i.e., MassHealth) that you may need should you become incapacitated.

Living / Incapacity Probate

Without planning for incapacity, if you become incapacitated, depending on your circumstance, a loved one would have to file a petition in Probate Court to be appointed as your conservator to make financial decisions on your behalf and a petition to be appointed as your guardian to make medically related decisions on your behalf.

Probate Court controls this entire process even though decisions may need to be made on an immediate basis for the benefit of you or your loved one. This situation can prove to be disastrous as well as very expensive for the family.

In a recent AARP March 2017 survey, 81% of people said they think about the above issues, however only 33% said they had taken any action regarding planning for incapacity, such as completing any necessary forms. Although it is hard to talk about and think about, it is important to take care of these matters for your own sake and for the sake of your family. Socius Law Firm can help you understand your options and ensure you are able to make informed decisions regarding planning for incapacity for yourself or a loved one.

By Todd Rosenfield

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Posted in: Estate Planning


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