How Is Incapacity Defined and Who Decides If I Am Incapacitated?

When you contemplate your estate plan, and the goals and objectives related to that plan, you likely focus almost entirely on how to provide for your loved ones when you are gone and how your estate assets will be distributed to those loved ones. In fact, you may not have considered the need to plan for any other important possibility. You should, however, plan for the possibility of incapacity. With that in mind, the Oklahoma City incapacity planning attorneys at Parman & Easterday explain how incapacity is defined and who decides if you are incapacitated in Oklahoma.

Incapacity Is Not Just for Seniors

Incapacity should not always be equated with old age. It is true that the natural aging process can result in incapacity as can conditions such as Alzheimer’s disease;  however, incapacity can strike anyone at any age as a result of a workplace injury, a serious illness, or even a car crash. Consider, for example, 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 Oklahoma?

The need for a legal definition of “incapacity” could come up under several different circumstances. Consequently, there may be more than one definition of incapacity and there may be more than one person with the authority to declare you incapacitated. For example, if someone has petitioned to become your legal guardian, Section §30-1-111 of the Oklahoma Guardianship and Conservatorship Act governs the definition of incapacity. According to that section, an incapacitated person is a person 18 years of age or older:

• who is impaired by reason of:
  • mental illness as defined by Section 1-103 of Title 43A of the Oklahoma Statutes
  • mental retardation or developmental disability as defined by Section 1-818.2 of Title 63 of the Oklahoma Statutes
  • physical illness or disability
  • drug or alcohol dependency as defined by Section 3-403 of Title 43A of the Oklahoma Statutes, or
  • such other similar cause and
• whose ability to receive and evaluate information effectively or to make and to communicate responsible decisions is impaired to such an extent that said person:
  • lacks the capacity to meet essential requirements for his physical health or safety or
  • is unable to manage his financial resources.

To become someone’s guardian or conservator the person seeking guardianship/conservatorship must petition a court and convince a judge that one is needed. Ultimately, therefore, it will be a judge in a guardianship/conservatorship proceeding that determines the issue of incapacity

Incapacity must also be declared to trigger the power given to an Agent in an advance directive. Your Agent’s authority goes into effect when a doctor (or two, if that’s what your documents require) determines that you are no longer able to make your own decisions, and that you are terminally ill, persistently unconscious, or have an end-stage condition. In that case, it is a physician who decides that you are incapacitated.  It is also possible to create a Disability Panel consisting of a physician and other family members to determine your incapacity.

As you can see, incapacity doesn’t have one universal definition nor is there one person who has the authority to declare someone to be incapacitated. Moreover, incapacity can strike anyone at any time. The key to ensuring that you are prepared for the possibility is to incorporate an incapacity planning component into your comprehensive estate plan now.

Contact Oklahoma City Incapacity Planning Attorneys

For additional information, please join us for an upcoming FREE seminar. If you have additional questions or concerns about incapacity planning, contact the experienced Oklahoma City incapacity planning attorneys at Parman & Easterday by calling 405-843-6100 to schedule your appointment today.