Planning for Incapacity

by | Feb 17, 2023

Incapacity is a term used if you are still alive, but a doctor finds you’re unable to make decisions for yourself. You can be deemed incapacitated for a variety of reasons but the most common examples are brain aneurysm, coma, or dementia.

How Incapacity is Defined in Colorado

In Colorado, incapacity means:

“an individual, other than a minor, who is unable to effectively receive or evaluate information or both or make or communicate decisions to such an extent that the individual lacks the ability to satisfy essential requirements for physical health, safety, or self-care, even with appropriate and reasonably available technological assistance §15-14-102 C.R.S.”

Potential Downfalls of Failing to Prepare for Mental Incapacity Ahead of Time

If you do not put Financial and Medical Powers of Attorney in place, you would go through a guardianship/conservatorship hearing. This is an expensive one-day hearing where a judge would appoint someone for you.

More often than not, married couples assume that their spouse would be named and so therefore they think it is not that big of a deal. However, spouses tend to travel together, so what if you are both incapacitated? Additionally, it is fairly common that your spouse is appointed as your Financial Power of Attorney because there are joint accounts and such. However, it is not as common for your spouse to be appointed as your Medical Power of Attorney. It is typically more common for a professional to be appointed.

The problem with a professional being appointed is that they cost an arm and a leg an hour and they do not know your medical wishes. Additionally, once you go through a guardianship/conservatorship hearing and a doctor says you are now free to make your own decisions again, you have to go back to the court and ask permission to make your own decisions; and the court does not always say “yes.”

Benefits of Being Prepared for Potential Incapacity in the Future

When you name your Financial and Medical Powers of Attorney now, you can name as many back ups as you feel comfortable with. That way, if someone you have named is also incapacitated or predeceases you, it will just go to the next person you have named.

Once you put Powers of Attorney in place, you will avoid not only the expensive hearings and costly fiduciary charges, but more importantly, you will gain peace of mind knowing that you have chosen the right people to ensure your wishes are carried out.

What You Can Do Now

Schedule your free initial consultation to discuss Powers of Attorney with one of our experienced attorneys today!