How Is Incapacity Determined?

This is an important question in estate planning because many instruments become active when the person who executed it becomes incapacitated.  The reverse is also true.  There are many instruments that cannot be created if the person trying to execute the instrument is incapacitated.  Determining an individual’s capacity or incapacity can be a very difficult issue, but it is a necessary determination in many legal proceedings.

What is incapacity?

In general, a person is considered incapacitated when he or she is no longer able to manage their own affairs or maintain his or her own physical well-being.  There are some medical conditions that also result in a declaration of incapacity, such as dementia or various mental illnesses.  Age and infirmity can also diminish a person’s capacity to care for themselves.  Incapacity can also refer to someone who is unconscious or in a coma, which renders them unable to respond to questions or make decisions.

Under Minnesota law, an incapacitated person is defined as follows:

an individual who, for reasons other than being a minor, is impaired to the extent of lacking sufficient understanding or capacity to make or communicate responsible personal decisions, and who has demonstrated deficits in behavior which evidence an inability to meet personal needs for medical care, nutrition, clothing, shelter, or safety, even with appropriate technological assistance.

A physical disability alone is never sufficient to find incapacity because, obviously, persons with a physical disability can make his or her own decisions as long as they have full mental capacity.

Who makes the legal decision that someone is incapacitated?

A legal determination of incapacity is made by a court.  In doing so, the court reviews the opinions of medical experts after the person has been examined for that purpose.  As long as no one is contesting the determination, the court will rely on the written statements by the medical experts.

Incapacity can always be contested by a family member or even the person in question.  If that happens, the court will usually retain a psychiatrist or psychologist to assist in the determination.  The court will then consider the opinions of these mental health professionals in making its final ruling.

If a person is declared completely incapacitated, they lose the right to make any decisions regarding their personal welfare or their finances.  This would include decisions about where to live, about medical care and how to spend their money.  However, if only partial incapacity is determined, then they may only lose their ability to make decisions about a certain aspect of their lives, such as their finances.

Can an incapacity determination be reversed?

It is important to recognize that incapacity is not always permanent, such as someone who comes out of a coma or is effectively treated for an illness.  When the person who has been determined to be incapacitated, referred to as the “ward,” regains his or her decision making abilities and can sufficiently demonstrate to the court that they are no longer incapacitated, the court can return control of their affairs to them.


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