When you contemplate the need for estate planning you likely focus on the need to protect loved ones in the event of your death. While that certainly should be an important part of your estate plan, you shouldn’t stop there. To truly protect not only your loved ones, but yourself as well, you also need to contemplate the possibility of your own incapacity. To help you better understand the need for incapacity planning, an Oklahoma City estate planning lawyer at Parman & Easterday explains how incapacity is determine in Oklahoma.
Do I Really Need to Worry about Incapacity Right Now?
You may be one of the many people who automatically associate incapacity with age related conditions such as Alzheimer’s disease and other dementia related conditions. All too often that (mistaken) belief means that they don’t plan for the possibility of becoming incapacitated. The reality, however, is that you don’t have to be a senior citizen to suffer a period of incapacity. In fact, incapacity can strike anyone at any age as a result of a debilitating illness, a catastrophic accident, or even a serious workplace injury. The following facts and figures help illustrate the need to plan for incapacity at any age:
- 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
Given the fact that incapacity can occur at any age, it is important to plan for that possibility. First, however, it helps to gain a better understanding of how incapacity is defined and who determines if someone is incapacitated.
Who Determines Incapacity and How Is that Determination Made?
Within the law there is more than one set of circumstances under which the concept of “incapacity” could come up. Consequently, there may be more than one definition of incapacity, more than one process for determining if someone is incapacitated, and more than one person with the authority to declare you incapacitated.
For example, if you are contemplating the need to petition for a court appointed guardianship over a parent or other adult, you will have to petition a court and convince a judge that a guardian is necessary. In Oklahoma, the court will look to the statutory provisions for guidance. An “incapacitated person” means a person eighteen (18) years of age or older
- Who is impaired by reason of:
(a) mental illness as defined by Section 1-103 of Title 43A of the Oklahoma Statutes,
(b) mental retardation or developmental disability as defined by Section 1-818.2 of Title 63 of the Oklahoma Statutes,
(c) physical illness or disability,
(d) drug or alcohol dependency as defined by Section 3-403 of Title 43A of the Oklahoma Statutes, or
(e) 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:
(a) lacks the capacity to meet essential requirements for his physical health or safety, or
(b) is unable to manage his financial resources.
On the other hand, for purposes of activating an Oklahoma Advanced Directive for Health Care, it will be a doctor (or two, if required by the document) that makes the determination of incapacity. The Advanced Directive allows the Agent appointed in the document to make health care decisions if a doctor(s) determines that you are no longer able to make or communicate your health care decisions.
Contact an Oklahoma City Estate Planning Lawyer
For additional information, please join us for an upcoming FREE seminar. If you have additional questions or concerns about how to plan for the possibility of incapacity within your estate plan, contact an experienced Oklahoma City estate planning lawyer at Parman & Easterday by calling 405-843-6100 to schedule your appointment today.
Since founding Parman & Easterday in 1985, Larry has led over 1,000 free, community-service education programs and helped more than 10,000 Oklahoma families go from putting off their estate plan to getting it done. His goal for every client is the same: to become the person their family calls "the one who took care of everything."
Larry is the author of three books: The Straight Shooter's Guide to Estate Planning; Estate Planning Basics; and Guiding Those Left Behind in Oklahoma. He served as Oklahoma's Secretary of State and Secretary of Commerce, and his firm is the only member of the American Academy of Estate Planning Attorneys in the state.
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